Insolent insubordinate behaviour: Unacceptable but breach?

3 Comments

1. 

   GilesFiles on May 25, 2015 at 6:33 am

   Now reported
   [2015] 5 BLLR 484 (LAC)

2. 

   GilesFiles on May 30, 2015 at 2:58 pm

   See also (2015) 36 ILJ 1511 (LAC)

3. 

   GilesFiles on Aug 13, 2015 at 3:13 pm

   John Grogan writing in Employment Law (2015) August issue published by LexisNexis under the heading The cheek of it!: Insolence, insubordination or both?

   Last gasp

   Palluci Home Depot ’s last gasp was whether the court below had been too generous when awarding Herskowitz compensation equal to 10 months’ salary. The company argued in this regard that Herskowitz had not asked for reinstatement because she accepted that the employment relationship had become intolerable and that, had she been reinstated, she would have been entitled to a lesser amount. The company relied in this regard on Tshongweni v Ekurhuleni Metropolitan Municipality (2012) 31 ILJ 2847 (LAC), in which the court found that Mr Tshongweni was trying a fast one by seeking reinstatement merely to pocket the back pay of 43 months he claimed to evade the ceiling of 12 months’ compensation imposed by the LRA. The Palluci Home Depot court found that Herskowitz had not tried such a ruse: she had simply claimed the maximum compensation to which she was entitled under the Act, and the Labour Court had subtracted two months’ salary in view of the fact that she had been employed on a fixed term contract, with some 20 months to run. By so doing, the Labour Court had correctly sought to compensate Herskowitz realistically for the loss she had suffered from her unfair dismissal, and to avoid punishing Palluci Home Depot when so doing.

   The appeal was dismissed with costs – a costly lesson for Palluci Home Depot, and a timely lesson for all employers: if an employee is perceived as cheeky, it may be prudent to turn the other cheek unless it is clear that the employee is being truly mutinous.