EMPLOYER MODEL ARGUMENT: Workplace bullying

INTRODUCTION AND BACKGROUND

1. The employer employed a senior manager at a substantial annual salary and dismissed her on notice 8 months later.

2. The manager has challenged her dismissal as unfair in both substance and procedure. The employer bears the onus to prove that the dismissal was effected

(a) for a valid and fair reason and

(b) in accordance with a fair procedure.1

3. The employer submits in overview that:

3.1 The manager engaged in bullying and intimidating conduct which created an unsafe and unfulfilling work environment;

3.2 Her conduct contravened the employer’s values and code of conduct and impacted on the dignity of her subordinates. It amounted to gross misconduct and warranted dismissal;

3.3 Dismissal was a rational operational response. The manager’s conduct destroyed the necessary relationship of trust of confidence in her as a senior manager;

3.4 The pre-dismissal procedure was fair: neither the Code of Good Practice nor the employer’s own procedures required the holding of a full evidential adversarial enquiry prior to taking the decision to dismiss; and

3.5 There was no inconsistency in the application of discipline: the comparator put up by manager was found not to have engaged in bullying.

4. These submissions start with

  • a brief summary of the evidence placed before the arbitrator.
  • The law in respect of workplace harassment and bullying is next set out, and
  • the reasons why there was a fair reason to dismiss is discussed.

The law governing the enquiry into procedural fairness is then described, as well as the reasons why the pre-dismissal procedure was fair.

The employer asks for an award confirming that

  • there were valid and fair reasons for the dismissal and
  • the pre-dismissal procedure was fair.

WORKPLACE BULLYING: THE LAW

15. In March 2022 the Department of Employment and Labour published

  • the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace GN R1980 published in GG 46056 on 18 March 2022 (‘the new Code’),
  • replacing the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

The new Code is guided by ILO Convention 190, Violence and Harassment Convention, 2019 (ILO Convention 190) was ratified by South Africa on 29 November 2021 and is intended to address the prevention, elimination and management of all forms of harassment in the workplace, including workplace bullying. (Introduction to the new Code).

16. Prior to the introduction of the new Code there was debate amongst South African jurists and scholars concerning the legal source of a right not to be bullied at work.

[See for example

    • A Rycroft Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice? (2009) 30 ILJ 1431;
    • B Witcher Workplace Bullying Law: Is It Feasible? (2010) 31 ILJ 43;
    • S Duncan Workplace Bullying and the Role Restorative Practices Can Play (2011) 32 ILJ 2331;
    • D Smit Labour Law, the Queen Bee Syndrome and Workplace Bullying (2016) 37 ILJ 779].

In determining disputes involving the bullying of subordinates by managers, the Labour Court and CCMA

[See for example

  • general principles of fairness,
  • the EEA provision that harassment is a form of discrimination [Section 6(3) of the Employment Equity Act 55 of 1998] and
  • academic writings, particularly those of Prof Alan Rycroft who defined bullying as
    • ‘persistent and unwelcome conduct which is hostile or offensive to a reasonable person and induces a fear of harm and demeans, humiliates or creates a hostile and intimidating environment, calculated to induce submission by actual or threatened adverse consequences’ –
    • with examples including insults, degradation, hypercritical negative attitude, threats, ridicule, undermining and overbearing supervision.[A Rycroft Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice? (2009) 30 ILJ 1431] 

17. The new Code, which (like all Codes of Good Practice) must be taken into account by this tribunal, defines harassment:

    • it is unwanted conduct which impairs dignity,[Clause 4.1.1 of the new Code]. 
    • amounts to an abuse of power, [Clause 4.3 of the new Code]. and
    • includes workplace bullying. [See clauses 4.5.2, 4.6 and 4.7.7 of the new Code].

The Code affirms the usual test, which is the impact on the complainant. [See clauses 4.4.5, 4.5.4.2 and 4.6.1 of the new Code].

18. The new Code confirms that employers have an obligation to prevent harassment and that they are expected to adopt an attitude of zero tolerance towards bullying, thereby maintaining a working environment in which the dignity of employees is respected. [Clauses 8.1 and 8.2 of the new Code].

19. The new Code reminds employers that they are vicariously liable for the conduct of harassers, should they fail to take adequate steps to eliminate conduct such as bullying. [Clause 10.3 of the new Code].

Indeed, the Labour Court recently held the SA Police Service vicariously liable for bullying and harassment endured by an employee,[Solidarity obo Oosthuizen v SA Police Service & Others (2023) 44 ILJ 882 (LC)] ordering the employer to

    • pay R300,000 to the aggrieved employee,
    • provide a written apology and
    • pay her trade union’s legal costs.

20. The new Code, like its predecessor, recognises the role of both informal and formal procedures in investigating and addressing instances of alleged harassment, and notes that disciplinary sanctions may be imposed on perpetrators. [Clauses 10.7-10.9 of the new Code].

It also emphasises that investigations should be carried out in a manner that ensures that the identities of the persons involved remain confidential. [Clauses 9.4.4 and 11.1 of the new Code. See also clause 10.2 which sets out the ‘obligations of the employer’].

21. The employer’s internal policy on bullying and harassment is set out in the Employee Handbook (which is incorporated into the employee’s contract of employment). [Employer bundle pp11-12: Employee Handbook pp40-41].

It aligns in all material respects with the new Code.

22. The employer’s disciplinary procedure provides for dismissal in cases of gross misconduct.

‘Discrimination, bullying and harassment’ is included in the list of misconduct deemed gross. [Employer bundle pp9-10: Employee Handbook pp38-39].

VALID AND FAIR REASON TO DISMISS THE EMPLOYEE RELATED TO CONDUCT

23. The allegation which the manager was called to answer was that she had engaged in bullying and intimidating conduct. Five bullet points set out specified instances of such conduct. [Employer bundle p43]. At the arbitration hearing, the manager’s representative dealt with each cited instance as though it was an individual ‘charge’, which in his view did not warrant dismissal.

24. This is not the correct approach to take in a disputed bullying dismissal.

The court in Standard Bank v Makuleni [(note 20 above)] confirmed, with reference to Gaga v Anglo Platinum Ltd and others, [(2012) 33 ILJ 329 (LAC)] that evidence in such matters should be considered holistically, and not compartmentalised. [Standard Bank v Makuleni (note 20 above) at par 58].

This same approach was followed in FA and University of the Witwatersrand: evidence in a case of bullying should be looked at cumulatively, as the conduct is something which develops over time, usually made up of small instances which together amount to a pattern.

The arbitrator must accordingly pay attention to the complainant’s experience of how she was treated by the perpetrator, the enquiry being to evaluate the individual examples ‘in the round’ to determine whether they amount to bullying by a senior.

25. On this approach, an assessment of the evidence placed before the arbitrator supports conclusions that:

25.1 The Manager’s conduct amounted to bullying;

25.2 Dismissal was a fair decision in all the circumstances, taking into account that:

25.2.1 the sanction of dismissal is not intended to be punitive in nature – our courts have held that it is, rather, a rational operational response to the risk posed by continuing to employ and employee;

25.2.2 the employee was a senior Manager;

25.2.3 her defence/justification only underscores the gravity of her conduct;

25.2.4 the employer has a zero-tolerance policy in respect of bullying; and

25.2.5 the consistency challenge is without merit.

26. These elements supporting the conclusion that the dismissal was for a fair reason are now discussed in turn.

Did the employee’s conduct towards her subordinates amount to bullying?

27. The impact on a Junior female employee of her Manager’s behaviour was significant. She is a young black female graduate. Her dignity was certainly impaired. Being spoken down to, made her feel belittled, demeaned and embarrassed. As she could not predict how she would be treated from day to day, she became afraid and uncertain. She lost confidence in herself. She lost enjoyment in her work. She felt hopeless, realising that her Manager, whose frequent apologies showed knowledge of wrongdoing, had no intention or ability to change.

28. Her response was certainly that of a reasonable person in her position. The Manager’s management style alternated between the two extremes of extravagant warmth on the one hand, and harsh authoritarianism on the other.

One moment she would unnecessarily (even inappropriately) involve herself in personal affairs (sharing advice on pap smears, for instance) and the next moment she would express contempt (eg calling the young professional a ‘child’) and unwarranted aggression (eg accusing her of ‘lying’ when her UPS failed).

She abused her position of authority and power and engaged in blackmail when she threatened her with disciplinary action (such threats being the antithesis of the informal, supportive and nurturing corrective process the employee would later profess to be following).

29. The evidence strongly supports the conclusion that the Manager engaged in bullying and intimidating conduct.

 Was dismissal a fair sanction in all the circumstances?

30. The Manager was aware of the rule against bullying, which is a reasonable and necessary rule. On her own version, the Manager was aware that her conduct was unacceptable, unprofessional and warranted disciplinary action.

31. The Manager nevertheless contends that dismissal was too harsh a sanction. Despite her earlier view that her conduct warranted a written warning, the Manager at the arbitration hearing complained that she had not received counselling or anger management training. She argued that her conduct could and should be corrected, and she sought reinstatement.

32. The employer nevertheless asserts that dismissal was a fair sanction, taking into account all relevant circumstances and in particular the considerations listed above.

Dismissal is a rational operational response to the risk posed by employing her

33. The Manager is a senior employee responsible for a team servicing important clients. Replacing her with a new Manager, whose style conforms to the employer’s values, is a necessary operational decision.

In De Beers Consolidated Mines Ltd v CCMA [(2000) 21 ILJ 1051 (LAC) per Conradie JA (Zondo AJP dissenting and Willis JA concurring on different grounds)] the LAC pointed out that companies do not dismiss employees in order to punish them – rather, it is because they cannot run the risk of continuing to employ them: 

[A recent decision embracing this principle is Worldwide Staffing (Pty) Ltd v MEIBC [2024] SALCJHB 67 (12 February 2024)]. 

Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed.

Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.40

… the risk factor is paramount. If, despite the prima facie impression of reliability arising from long service, it appears that in all the circumstances, particularly the required degree of trust and the employee’s lack of commitment to reform, continued employment of the offender will be operationally too risky, he will be dismissed.41

Senior managerial employee

34. Our courts have in addition recognised that the test for substantive fairness in the dismissal of senior managerial employees is ‘more flexible’.

In Brereton v Bateman Industrial Corporation Ltd [(2000) 21 ILJ 442 (IC)] which was upheld on appeal to the LAC (unreported, JA/99 7/2/2002) the court noted that senior managers occupy a position entirely different to that of ordinary employees, and that

‘aspects such as personality conflicts, management style and simple lack of confidence in the ability or willingness of the Manager to do the job in the way the owners or senior colleagues desire could justify dismissal. The use of formal procedures prior to dismissal also seems to be less relevant in these circumstances’.

Manager’s defence/justification only underscores the gravity of her conduct

35. The Manager’s response to the allegation of bullying and harassment does nothing to repair the employment relationship – indeed, it underscores the necessity of the operational decision to terminate it. At its core, it is an incoherent and conflicted response, which mirrors the chaotic management style that the employer does not wish to embrace. The Manager’s response combines a number of incompatible defences:

35.1 Justification – for instance, that she was under work pressure, that everyone swears, that she was provoked by a ‘cheeky’ team, or that the performance of her subordinate and repeated errors caused frustration and warranted harsh management;

35.2 Minimising and/or denying – including stating that she does not ‘shout’ but rather ‘raises her voice’ and that she does not make ‘threats’ but rather describes ‘consequences’, asserting that she was a kind manager who gave her subordinate time off to attend to her nephew, and stating that she frequently apologised when she overstepped the mark with her team;

35.3 Confession, remorse and contrition – insisting that she ‘takes full responsibility’ for her conduct, which is not what she would expect from herself, and conceding that her justifications are ‘no excuse’.

36. It will be immediately apparent that the denial is incompatible with the remorse/taking responsibility, which is in turn incompatible with blaming the conduct on the circumstances.

37. There is no reasonable basis upon which to conclude that it would be a sensible approach to risk management to attempt instead to correct the Manager’s behaviour.

The employer has a zero-tolerance approach to bullying

38. The Manager pleads the above arguments in ‘mitigation’ but this approach is misguided: our courts have held (authorities given in the footnotes) that:

38.1 mitigation, as that term is understood in the criminal law, has no place in employment law; [De Beers, note 38 above, at par 22].

38.2 in any event, where an employer has justifiably adopted a zero-tolerance approach to specific conduct (as the new Code in fact now requires in respect of bullying) this means that it will not be tolerated at all and that mitigating factors play no role; [Numsa obo Nhlabathi v PFG Building Glass (Pty) Ltd [2023] 2 BLLR 142 (LC)].

38.3 remorse will not assist a manager where the trust relationship has broken down. [Absa Bank v Naidu [2015] 1 BLLR 1 (LAC)].

The consistency challenge is without merit

39. The Manager complained of inconsistency in the application of discipline, in that her employer did not discipline or dismiss another manager after she submitted a formal complaint of bullying and harassment against him.

40. It is not in dispute that the procedure followed in both cases was identical; it is only the outcome that differed. The Manager does not dispute that, once she submitted a formal complaint it was investigated.

Nor does the Manager dispute that her grievance was not upheld – that is, that upon investigation, her employer did not find grounds sufficient to require the fellow manager to answer to any allegation of bullying and harassment.

41. The consistency argument is accordingly misplaced: inconsistency would only arise if the investigation had resulted in the fellow manager being called to answer to an allegation of bullying, but that despite the employer finding that he was a bully he was not dismissed. [See Nehawu obo DC v IEC (2024) 45 ILJ 410 (CCMA) at paras 39 – 42, where the dismissed employee alleged inconsistency, but the comparator, who was formally ‘charged’ with similar misconduct, was found ‘not guilty’].

42. The Manager’s real complaint here is that her grievance was not upheld – which is a dispute for another forum. The arbitrator in these proceedings is not placed in a position to determine whether her complaint was without foundation, alternatively whether her fellow manager ought to have been invited to a formal hearing to answer to allegations of bullying. The evidence goes no further than to demonstrate that both complaints were handled identically by the employer.

FAIR PROCEDURE IN INTERNAL DISCIPLINARY HEARINGS – THE LAW

43. The Code of Good Practice: Dismissal (schedule 8 to the LRA) provides at item 4 for fair procedure.

The full section reads:

(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

44. As noted by the commissioner in the workplace bullying case of FA and University of the Witwatersrand [see above] the approach set out in item 4 of Schedule 8

‘represents a significant and fundamental departure from what might be termed the criminal justice model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved in terms of the Labour Relations Act of 1956. That model likened a workplace disciplinary enquiry to a criminal trial …’. [Supra at par 246].

45. This remark is drawn from the renowned Avril Elizabeth [2006] 9 BLLR 833;(2006) 27 ILJ 1644 (LC) (hereinafter ‘Avril Elizabeth’)  judgment in which the Court decried over-proceduralism.

Van Niekerk J (now JA) emphasised the new approach to procedure in workplace discipline:

The signal of a move to an informal approach to procedural fairness is clearly presaged by the explanatory memorandum that accompanied the draft Labour Relations Bill. The memorandum stated the following:

‘The draft Bill requires a fair, but brief, pre-dismissal procedure. . . . [It] opts for this more flexible, less onerous, approach to procedural fairness for various reasons: small employers, of whom there are a very large number, are often not able to follow elaborate pre-dismissal procedures; and not all procedural defects result in substantial prejudice to the employee.’ [Avril Elizabeth at 1652 D-F].

46. The learned Judge went on to explain precisely why the criminal justice model of procedural fairness was no longer appropriate under the new LRA.

This is because: [Avril Elizabeth 1652 I – 1653 E].

46.1 for employees, ‘true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy’ – that is, the right to free, fast dispute resolution (conciliation and arbitration) at the CCMA;

46.2 for employers, ‘this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate’ – that is, it is in line with a primary purpose of the Act, being to advance economic development;

46.3 The ‘balance’ struck by the LRA recognizes that managers are not experienced judicial officers, and that workplace efficiencies should not be impeded by onerous procedural requirements;

46.4 Requiring onerous workplace disciplinary procedures is inconsistent with the right to expeditious dispute resolution, because the statutory unfair dismissal arbitration is a hearing de novo, rendering continued application of the criminal justice model of workplace procedure ‘a duplication of process, with no tangible benefit to either employer or employee’.

47. The Court emphasised that

‘On this approach, there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge-sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like’ [Avril Elizabeth 1652 G].

47. The lessened procedural formality encoded in item 4 of schedule 8 is also supported by international labour standards: International Labour Organization Convention 158 states merely

  • that there should be ‘valid reasons’ for dismissal, and
  • that employment should not be terminated before employees are given an opportunity to defend themselves.

Referring to item 4 in light of these international standards, the court in Avril Elizabeth held that the opportunity provided to an employee to state a case in response to allegations need not be a formal enquiry, but

‘means no more than that there should be dialogue and an opportunity for reflection before any decision is taken’. [Avril Elizabeth 1653 I – 1654 A].

49. In Trustees for the Time Being of the National Bioinformatics Network Trust v Jacobson & Others [[2009] 8 BLLR 833; (2009) 30 ILJ 2513 (LC) at par 6. See also Num v CCMA (C504/06) [2010] ZALC 325 (25 March 2010) at 25-27] Van Niekerk J was scathing of the ‘profitable cottage industry’ supported by the criminal justice model of internal hearings, stating that the employer in that case:

‘chose to ignore the informal workplace procedures prescribed by the Code of Good Practice and to conduct a disciplinary enquiry, at great expense to the taxpayer no doubt, in a form that would make any criminal court proud.

I have previously had occasion to comment on the profitable cottage industry that has developed from the application of unnecessarily complex workplace disciplinary procedures, and how inimical the actions of some practitioners, consultants, so-called trade unions and employer organizations and the various other carpetbaggers who populate this industry are, in relation to the objectives underlying the LRA.’

50. The new, less formal approach retains the cornerstones of fairness at common law –

    • that the employee has the right to be heard, and
    • that the employer must keep an open mind.

In some workplaces, employers employ very truncated procedures including ‘hearings’ by way of written submissions, and where challenged these procedures have been upheld as fair by our employment law tribunals. [See for example N v CCMA [2023] 1 BALR 61 (CCMA) (2 November 2022); Bidvest Protea Coin v Myeni unreported JR1164/21 (15 March 2022) at paras 18 – 20].

51. Statutory arbitrators faced with an allegation of procedural unfairness

  • must apply the standard of procedural fairness set out in item 4 of Schedule 8; [LRA s203; Avril Elizabeth 1654 E-F.]
  • failure to do so will constitute a material (and therefore reviewable) error of law. [Avril Elizabeth 1654 I – 1655 E].

52. Of course, employers and unions can agree to retain the criminal justice model at workplace level ‘if they are so inclined’. [Avril Elizabeth 1654 F – G]. But in this particular case, there is no such agreement.

53. The employer’s internal disciplinary procedure is set out in the Employee Handbook (‘the Handbook’) which is incorporated into the employee’s contract of employment. [Employer bundle pp7-9: Employee Handbook pp36-38].

54. The pre-dismissal procedure outlined in the Handbook aligns with item 4 of Schedule 8.

In particular, it provides for:

54.1 a full investigation preceding the decision to invoke a formal disciplinary procedure; [Employer bundle p8 (bottom right, under ‘formal procedure’): Employee Handbook p37] and

54.2 a disciplinary hearing, in respect of which the employee has the right to: [Employer bundle p9 (top left, under ‘disciplinary hearing’): IDR Group Employee Handbook p 38].

54.2.1 a written invitation to attend a disciplinary meeting;

54.2.2 be represented; and

54.2.3 an opportunity to state a case before a decision is reached.

DISMISSAL IN ACCORDANCE WITH A FAIR PROCEDURE

55. The evidence is that the pre-dismissal meeting met the core requirements of procedural fairness:

    • an investigation preceded the drafting of the allegations,
    • which were understood by the employee,
    • who had a few days to prepare her response and
    • who was permitted representation by her advocate at the hearing.

She was afforded the opportunity to state her response to the allegations, and the reasoned decision was communicated to her in person and in writing.

56. Nothing more is required by item 4 of the Code of Good Practice: Dismissal. Nothing more is required by the Handbook incorporated into the contract of employment.

57. The Manager has now exercised her right to challenge the fairness of the decision to dismiss her, and has enjoyed a full hearing de novo before a private arbitrator. To require the company to have run a full evidential hearing internally would be to require a duplication of process.

This would not only be inefficient and costly, but would run directly counter to the Code of Good Practice: Dismissals and the purpose thereof as elucidated by our courts. [See Boardrooms are not courts: the decriminalised approach to workplace discipline published in the Cliffe Dekker Hofmeyr Employment Alert on 20 November 2023]. This publication was sent to the employee’s advocate on 29 November 2023 in response to the notice of appeal. [See employer’s bundle p40].

REMEDY

58. In all the circumstances, the employer asks for a finding that the Manager’s dismissal was substantively and procedurally fair.

LIST OF AUTHORITIES

1. LEGISLATION

  • Labour Relations Act 66 of 1995
  • Employment Equity Act 55 of 1998
  • Code of Good Practice: Dismissal schedule 8 to the LRA
  • Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace GN R1980 published in GG 46056 on 18 March 2022

2. TREATIES

  • C190, Violence and Harassment Convention, 2019 (ILO Convention 190)

3. ACADEMIC ARTICLES

  • A Rycroft Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice? (2009) 30 ILJ 1431
  • B Witcher Workplace Bullying Law: Is It Feasible? (2010) 31 ILJ 43
  • S Duncan Workplace Bullying and the Role Restorative Practices Can Play (2011) 32 ILJ 2331
  • D Smit Labour Law, the Queen Bee Syndrome and Workplace Bullying (2016) 37 ILJ 779
  • Boardrooms are not courts: the decriminalised approach to workplace discipline published in the Cliffe Dekker Hofmeyr Employment Alert on 20 November 2023

4. JUDGMENTS AND AWARDS WITH HYPERLINKS TO SAFLII

Alphabetical sequence:

Chronological sequence:

ARBITRATION AWARDS

MODEL AWARD: PRIVATE ARBITRATOR

9. The Manager testified that she was familiar with Item 4 of Schedule 8 of the LRA. During cross examination, the Manager conceded that all the elements listed therein were met in that: –

9.1. the Employer had exercised its prerogative and conducted an investigation of the complaints against her. The investigation had concluded that a case of misconduct had been made which required her response;

9.2. she was formally notified of the complaint in a form and language she understood;

9.3. she was afforded a reasonable opportunity to prepare her response;

9.4. she was afforded audi alteram partem and responded to the allegations that were made against her without any hindrance;

9.5. her right to representation was respected and fulfilled. Counsel for the Manager had made representations on her behalf at the disciplinary hearing and these were taken into consideration; and

9.6. she was formally notified of the outcome and the Employer’s reasons for the dismissal.

Summary of the Employer’s submissions

44. Counsel submitted that the Employer had a valid reason to dismiss the Manager because of her misconduct. It was not the correct approach to deal with each cited instance of bullying or intimidation as though it were an individual ‘charge’ but rather holistically.

This was confirmed in the case of Standard Bank v Makuleni (JR2261/18) [2021] ZALCJHB 309; [2021] JOL 51428 (LC) per Boda AJ at para 58.

45. According to this approach, it was clear from the evidence that there was a pattern of behaviour and that the Manager has engaged in bullying and intimidation. This had a huge impact on her subordinates in the workplace.

46. The impact of the bullying and intimidation on a junior employee was significant and unacceptable to the Employer. The junior employee’s dignity had been impaired and she was made to feel embarrassed and worthless. She felt hopeless and had lost confidence in herself and a sense of enjoyment for her work. She was fearful, anxious and uncertain from day to day, not knowing what the Manager’s behaviour would be like. She came to the realization that the Manager would not change her behaviour and that her frequent apologies indicated an awareness of her improper conduct. Her response was typical of a reasonable person in her position when subjected to bullying and intimidation.

47. The two extreme behaviours of the Manager described in vivid detail by a junior employee of a person showing excessive warmth and generosity on the one hand and going so far as to engage on a personal level with a junior employee; and then behaving in a dictatorial, aggressive and bullying manner on the other [hand] where she called a junior employee a ‘child’ and accused her of ‘lying’ when her UPS failed, proved extremely unsettling for employees in the work environment.

48. Eventually there was a point where the Manager’s frequent apologies did nothing to appease the junior employees.

49. The Manager abused her position of authority and power over her subordinates and engaged in blackmail and threats of disciplinary action.

50. The Manager’s managerial approach was the opposite of the nurturing and caring approach encouraged by the Employer in its policy.

51. Counsel argued that the dismissal was fair having regard to the fact that: –

51.1. it is an operational response to the risk posed by the continuous improper behaviour.

It was important to have regard to the ‘recent’ judgment in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration & Others [2000] 9 BLLR 995; (2000) 21 ILJ 1051 (LAC) per Johan Conradie JA at paragraphs 22 and 24 where the court held:

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise……

….the risk factor is paramount. If, despite the prima facie impression of reliability arising from long service, it appears that in all the circumstances, particularly the required degree of trust and the employee’s lack of commitment to reform, continued employment of the offender will be operationally too risky, he will be dismissed.’

51.2. the Manager was a senior manager of a team servicing high-end clients who was aware that her conduct was improper and inappropriate and that it warranted disciplinary action.

In this regard, the [industrial] court in Brereton v Bateman Industrial Corporation Ltd (2000) 21 ILJ 442 (IC) [Note: upheld by LAC on 7 February 2002 per N Page JA with R Zondo JP & CR Nicholson JA concurring] held that,

‘aspects such as personality conflicts, management style and simple lack of confidence in the ability or willingness of the manager to do the job in the way the owners or senior colleagues desire could justify dismissal. The use of formal procedures prior to dismissal also seems to be less relevant in these circumstances’.

51.3. It was an operational decision to replace the Manager with a manager whose management style conforms to the Employer’s values;

51.4. the gravity of her conduct was evident in her own version and justification or defence, which does nothing to repair the broken relationship of trust but rather underscores the operational decision to dismiss her;

51.5. the Employer has adopted a zero-tolerance policy in respect of bullying and intimidation; and

51.6. there is no basis for any ‘consistency challenge’ by the Manager.

Since a fellow employee was not invited to respond to an allegation of bullying, his case could not be used as a comparator except to demonstrate that the complaint against him had been investigated in the same manner as the complaint against the Manager.

Furthermore, this arbitration could not consider the question whether the Manager’s complaint was without any merit as this is a dispute for another forum.

52. Counsel further argued that the Employer had adopted a fair procedure in terms of The Code of Good Practice: Dismissal (Item 4 of Schedule 8 to the LRA) and the criminal justice model of procedural fairness was not appropriate in these circumstances because: –

52.1. employees enjoy the right to free and expeditious dispute resolution at the CCMA;

52.2. employers need not adhere to elaborate procedural requirements which were inefficient and inappropriate, having regard to the purpose of the LRA, which is to advance economic development;

52.3. workplace efficiencies should not be impeded by onerous formal procedural requirements; and

52.4. the statutory unfair dismissal arbitration is a hearing de novo.

53. International Labour Standards: ILO Convention 158 supported Item 4 in Schedule 8 of the LRA and states that there should be valid reasons for the dismissal and employees must be given an opportunity to defend themselves prior to dismissal. It is necessary to apply the standard of procedural fairness in terms thereof, and failure to do so will constitute a material and reviewable error of law.

54. The court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BLLR 833; (2006) 27 ILJ 1644 (LC) [per A van Niekerk J, now JA] at 1653I –1654A held that, the opportunity provided to an employee to state a case in response to allegations need not be a formal enquiry, but

‘means no more than that there should be dialogue and an opportunity for reflection before any decision is taken’.

55. The new less formal approach retains the cornerstones of fairness at common law – that the employee has the right to be heard and the employer must keep an open mind.

56. There is no agreement between the parties on the application of the criminal justice model in casu.

57. The Manager’s contract of employment incorporated the Employer’s internal disciplinary code and procedure as set out in the Employee Handbook.

58. The Employee Handbook is aligned with Item 4 of Schedule 8 and provides for: –

58.1. a full investigation;

58.2. a disciplinary hearing, in respect of which the employee has the right to: –

58.2.1. a written invitation to attend the disciplinary hearing and respond to the allegations;

58.2.2. be represented; and

58.2.3. an opportunity to state a case;

58.2.4. before a decision is reached.

59. Counsel submitted that the evidence confirms that the Manager’s dismissal was in accordance with a fair procedure. In other words, the Employer adhered to the procedure in Item 4 of Schedule 8 of the LRA and ensured that it complied with the requirements for procedural fairness, more specifically:

(a) an investigation that preceded the allegations/charges;

(b) notice was given to the Manager and clarity provided so that she fully understood the allegations/charges;

(c) the Manager had a reasonable period of time to prepare her response;

(d) she was represented at the disciplinary hearing by Counsel for the Manager;

(e) she was afforded an opportunity to respond to the allegations/charges and present her case; and

(f) the outcome was communicated to her in person and in writing.

60. According to Counsel, the Employer seeks a finding that the dismissal was fair. If however, it is found to be unfair then the Employer asks that: –

60.1. the Manager is not reinstated due to the operational risks that this would pose for the Employer; and

60.2. any financial compensation be limited to maximum 1/12 of the Manager’s annual cost to company, in view of her short service (8 months).

APPLICATION OF THE RELEVANT LAW AND POLICY

61. It is accepted that the Manager’s dismissal is not automatically unfair. In the circumstances, s188(1) of the LRA requires the Employer to prove:

(a) that the reason for the dismissal is a fair reason –

(i) related to the Manager’s conduct or [in]capacity;

(ii) based on the Employers operational requirements; and

(b) that the dismissal was affected in accordance with a fair procedure.

62. Furthermore, s188(2) requires this arbitration, when considering the issues raised in s188(1) of the LRA, to take into account the Code of Good Practice: Dismissal (Schedule 8 in the LRA), which deals with some of the key aspects of dismissals for reasons related to conduct and incapacity.

63. Item 1 of the Code of Good Practice: Dismissals, emphasizes the key principle,

‘that employers and employees should treat one another with mutual respect and that a premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees’.

64. The Employer’s values and policy on bullying, intimidation and harassment is contained in the Employee Handbook and is aligned to the Manager’s contract of employment. It is also aligned in all material respects to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (GNR1980 published in GG 46056 on 18 March 2022), which defines harassment as unwanted conduct which impairs dignity, amounts to an abuse of power and includes workplace bullying. The Code affirms the normative test, which requires consideration of the impact on the complainant.

ANALYSIS

65. As stated earlier, the facts are common cause.

66. In casu, it was accepted that the arbitration must consider all the relevant circumstances of the Manager’s dismissal for reasons related to her conduct per se, and that the Employer cannot reasonably fault the Manager’s work performance during the 8 months that she was employed.

67. Counsel submitted a further reason relating to the efficient operation of [the] business. This was also not disputed.

Fair reasons for dismissal

68. The Employer succeeded in proving that the Manager’s misconduct was detrimental to the employment relationship and the efficient operation of business, because of the impact it had on a junior employee and another fellow employee, who resigned in frustration, as well as on other parts of the business. Indeed the probabilities favoured the version advanced by the Employer.

69. It was clear from the evidence that the business unit which the Manager managed had become progressively dysfunctional due to her management style and that she was under severe pressure to maintain performance and outputs. The Manager viewed the junior employee’s performance deficits harshly and too readily invoked the threats of disciplinary action without the proper sanction, approval and guidance from the Employer’s HR department.

70. The evidence also indicated that the Manager’s harsh conduct became progressively worse after her probation period had ended, and concomitantly her subordinates had progressively lost confidence in her management style. They were no longer happy in their work environment because of her conduct and the impact on them was profound.

71. In the circumstances, it is evident that there are legitimate reasons for the dismissal namely the Manager’s egregious conduct and the need to contain the risks in respect of the operational requirements of the Employer’s business.

Disciplinary measures short of dismissal

72. It is common cause that the Employer had adopted values and a policy that establishes the standard of conduct required of its employees and that the Manager’s conduct fell short of this.

73. Inasmuch as the Employer was obligated to consider disciplinary measures prior to dismissal and more specifically corrective and progressive discipline, the evidence indicated that it did so and that the Manager was counselled previously during an informal disciplinary process conducted by Counsel when Ms. K had lodged a complaint against her.

74. In the managerial role that the Manager occupied and as a former union representative, the acute self-awareness of the Handbook containing the rules and her improper conduct and the extraordinary lengths she took in order to placate her subordinates after displaying abusive conduct repeatedly, indicates that the Manager cannot rely on the defence of corrective and progressive discipline.

75. Moreover, the complaint lodged by a junior employee followed by another complaint, which the Employer regarded as serious and of such gravity that it made a continued employment relationship intolerable, was not the Manager’s first ‘offence’.

76. It is clear that the Employer exercised its prerogative to impose the sanction of dismissal after assessing the seriousness of the Manager’s misconduct and the fact that it was repeated, followed by an apology and gestures of placation on each occasion.

77. In the circumstances, a third party (arbitrator) should be slow in interfering with the employer’s prerogative to make such an objective assessment of serious recurring misconduct and impose the sanction of dismissal, having regard to the efficient operation of the business.

78. During the arbitration hearing, it was evident that the Manager had experienced a lapse in judgment and that she had engaged in misconduct of a serious nature. She appreciated that her conduct was by no means exemplary, that employees experienced certain conduct of hers as a serious threat, that she had shouted and/or raised her voice at employees in a demeaning manner repeatedly, and that her repeated use of profanities was disrespectful of employees in the workplace.

This is sufficient for a reasonable employer in the position of the Employer to view this type of conduct as intolerable and to depart from the normative approach that entails: informal advice and correction; warnings based on degrees of severity; or a final warning, short of dismissal.

It was not disputed that dismissal is reserved for cases of serious misconduct or repeated offences, and that the Employer’s departure is lawfully permitted and under Item 3(3) of Schedule 8, in the circumstances.

The Manager’s dismissal for misconduct

79. At the outset, the nature and impact of the Manager’s alleged misconduct centres on the person on the receiving end and on balance, by convention and legal interpretation, when assessing the question of bullying, intimidation and harassment, this weighs more than the intention behind such egregious conduct which is detrimental to the employment relationship.

80. The Employer made a compelling case, which proves that the Manager’s conduct was less than satisfactory according to the standards set in terms of its values and policy.

81. The Manager conceded this much during the disciplinary hearing and also at the arbitration hearing and she suggested that it warranted a sanction, albeit a final written warning coupled with corrective action and not dismissal.

82. Upon receipt of the complaints the Employer, being concerned that the Manager’s conduct was detrimental to the employment relationship and the efficient operation of [the] business, was completely justified in taking action in terms of its Code of Conduct as the failure to do so would implicate and expose it to operational risk and severe liability.

83. There was no evidence to prove that the action taken by the Employer was arbitrary in any way. Counsel also testified that the Employer had considered the gravity of the misconduct, the Manager’s circumstances, the nature of the job and the circumstances of the infringements itself, when deciding whether to impose the sanction of dismissal.

84. The Employer was obliged to ensure employment justice in the workplace. It is vindicated for providing effective redress in regard to the Manager’s misconduct, thereby ensuring that its moral and legal obligations are fulfilled in terms of its values, policy and the LRA.

Inconsistency in enforcement of workplace standards

85. The Manager cannot rely on an ‘inconsistency challenge’ to justify her conduct. Such a challenge presupposes that the comparators used are relevant, valid and useful to draw appropriate conclusions. The facts and issues are distinguishable, each of the complaints is unique and each case should be judged on its merits.

86. The complaint which the Manager lodged against another employee and the one lodged by another employee against her, are not relevant or valid demonstrations of inconsistency in the enforcement of workplace standards.

87. Neither can the Manager argue in her defence that there was a culture of swearing and shouting in the office and that this did not attract disciplinary proceedings previously, thereby suggesting a measure of inconsistency.

88. It stands to reason that swearing in the workplace might not be regarded as offensive but when directed at a subordinate in a tone that is intimidating or aggressive, then it takes on a different meaning entirely.

89. This is also compounded when the impact on the subordinate and the employment relationship, objectively assessed, is significant and sufficiently serious to trigger a formal complaint and consequently the disciplinary procedures.

90. It was evident that the junior employee had been deeply impacted by the Manager’s misconduct and during the hearing Counsel made the unusual request for the Manager to lower her gaze and not look at the junior employee while she was testifying because she felt intimidated and afraid.

91. Furthermore, the Manager did not lead any evidence in the arbitration relating to the Employer’s inconsistent application of the sanction of dismissal to the Manager and other employees in the past. In this case, the Manager stands alone having been ‘accused’ of misconduct. Accordingly, no findings can be made in regard to this issue.

Fair procedure

92. The evidence is undeniable that the Manager was given reasonable and fair notice of the complaints and the disciplinary proceedings using a form and language that she reasonably understood.

93. The proceedings entailed: –

93.1. an investigation to determine whether there are grounds for dismissal. In this regard the Manager accepted that this need not be a formal enquiry;

93.2. affording the Manager a reasonable time to prepare and an opportunity to state a case in response to the allegations;

93.3. the Employer allowing counsel for the  Manager to make submissions on her behalf;

93.4. the Employer effectively communicating the decision taken after the enquiry; and

93.5. providing further recourse, for instance through the mechanism of a private arbitration to ensure the principle of access to employment justice is respected, promoted and fulfilled.

94. This arbitration could not apply a criminal justice model i.e. a model which likened a workplace disciplinary enquiry to a criminal trial.

The court in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration & Others [2006] 9 BLLR 833; (2006) 27 ILJ 1644 (LC) at para 246, jettisoned that model and denounced excessive proceduralism, encouraging an informal approach to procedural fairness.

95. The court [per A van Niekerk J, now JA] in Avril Elizabeth (at 1653I – 1654A) held that the opportunity provided to an employee to state a case in response to allegations need not be a formal enquiry but

‘means no more than that there should be dialogue and an opportunity for reflection before any decision is taken’.

96. This approach, which is enshrined in Item 4 of Schedule 8 of the LRA, is consistent with International Labour Standards as per the ILO Convention 158 and accordingly there is no reason to depart from it in this arbitration.

97. The Manager’s expectation of a formal enquiry with all the procedural bells and whistles is therefore misplaced and without merit.

OUTCOME

98. The Manager had contravened the Employer’s standard regulating conduct in, or of relevance to, the workplace. She was aware of the Employer’s values and policy in the workplace and did not dispute the validity or reasonableness of the values, policy or standard.

There were no valid, relevant and useful comparators to assess whether the values, policy and standard have been consistently applied by the Employer and accordingly no adverse inference can be drawn from this. In the circumstances of this case, dismissal was an appropriate sanction for the contravention of the values, policy and standard.

99. The dismissal meets the requirements of s188 of the LRA since there are valid and fair reasons arising from the Manager’s misconduct and the operational requirements of the Employer’s business; and since the dismissal was in accordance with fair procedure.

100. Accordingly, having considered the merits of the case for the dismissal in the circumstances, the Manager’s dismissal is hereby confirmed.

Arbitrator