Trans Hex Group Ltd v CCMA [2016] 2 BLLR 144 (LAC) per Savage AJA [Waglay JP and Musi JA concurring]

Sanction of dismissal: An employee with 16 years service was unfairly dismissed for driving a company vehicle without permission and causing losses.  Employers must prove a valid and fair reason for dismissal related to conduct or performance, or both.  Trans Hex clearly had a valid reason to dismiss.  So the only issue was the fairness of the reason to dismiss.  That required proof that the conduct seriously damaged or destroyed the necessary trust and confidence of senior managers.  Serious or gross misconduct is assumed to result in an intolerable ongoing employment relationship.  Employees who breach their  employment contracts in a fundamental and material manner means that they also forfeit their right to notice of termination, or payment instead thereof.

In all other instances employers must prove the ‘fairness’ of the reason to dismiss.  In other words proof is required that the conduct itself made further employment intolerable.  The word ‘sanction’ does not appear in the LRA and has resulted in considerable confusion, as evidenced in this case.  The LAC noted that the

‘erroneous recordal or categorisation of an issue by the arbitrator will not justify the setting aside of the award unless such error is material to the outcome, caused unfairness or prejudice’.

In other words the arbiter was actually considering the fairness of the reason itself although the focus appeared to be on the ‘most appropriate sanction’.  That meant the reinstatement award was not unreasonable and had to be upheld.

Comment

The word sanction could be interpreted as conferring some sort of punitive power on employers whereas management’s function is  to protect the business and not punish employees.  When judges are satisfied that there has been an irreconcilable break-down in a marriage relationship they grant a decree of divorce.  Perhaps the time has come to substitute the word “decree” for “sanction”.  So senior managers would then issue a “decree of dismissal” instead of a “sanction of dismissal”.