Numsa obo Boase v CCMA (Precious Metal Refinery) (JR1620/11) [2015] ZALCJHB 196 (9 July 2015) per Lagrange J.

The Labour Court remitted the matter to the CCMA for the remedy to be reconsidered after the employer surprisingly accepted that the reason for dismissal was invalid and unfair.  A shop steward was dismissed in 2010 for allegedly inciting employees not to work on 1 May 2009.  The employer failed to cross review the finding of substantive validity and fairness so that part of the award had to stand.  It seems to have been accepted that the employer failed to prove that the shop steward was ‘guilty of incitement’ in that employees had in fact stayed away because he incited them.  The only issue was the failure to reinstate the employee as required by s 193 of the LRA.

Comment:  The fact that the LRA does not refer to misconduct but conduct as a valid and fair reason to dismiss makes it perfectly obvious that employers do not need to prove ‘fault’.  This is very clear because employers are allowed to base dismissals on operational requirements and everyone knows that then ‘fault’ is not an issue.  So when there is no fault employers are obliged by the BCEA to terminate on reasonable notice and pay a severance benefit based on the number of years of service.

So why are employers obliged to prove ‘fault’ if they rely on conduct as the reason for dismissal ?  Surely it is obvious that ‘fault’ is really only relevant to the issue of forfeiture of rights granted to employees under the common law and the BCEA.  In the absence of a material breach of contract employees are entitled to reasonable notice of termination.  The same applies under the BCEA where minimum notice periods are specified.  But unlike the common law the BCEA adds the right to severance pay when employers rely on operational requirements as the reason for dismissal.  The BCEA also provides that employees forfeit that right if they unreasonably refuse to accept an alternative job offer.

The LAC has unanimously decided that employers are not prevented from following the statutory procedures and dismissing for a valid and fair reason based on genuine operational requirements.  This applies even when there is a possible overlap with conduct and capability issues.  The logic is clear and simple: employers must engage in a joint consensus-seeking process during which all issues will be dealt with and employees will not forfeit any right to notice nor severance pay.  Read the discussion of that judgment in Operational requirements: choice when misconduct related .

To sum up: When employers are contemplating any dismissals and have completed the necessary investigation they would be well advised to consider one of two courses of action:

#1   Follow the usual disciplinary enquiry procedures but only if there is clear and convincing evidence of gross misconduct and material breach of contract.  If proved the employee will not be entitled to any notice or severance pay because of the material and serious breach of contract.  This is recognised by the BCEA and the ILO Convention of 1982.

#2   In all other instances it makes complete sense to adopt the procedure set out in s 189 of the LRA and engage in the joint consensus-seeking process.  Explicit reasons must be provided in writing and employees have every right to respond to any allegations or averments and make suggestions.  But at the conclusion of the process the employee must receive reasonable notice and severance pay.  This is precisely what the ILO Convention of 1982 advocates.

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