Persons convicted of a crime in a court of law are ‘guilty’ and liable to be ‘punished’ by the State. Surely it is completely misleading to refer to an employee, or member of a political party, as being ‘guilty of misconduct’ when no crime has been committed, let alone proved beyond reasonable doubt? But routinely as a society we ‘convict’ persons and find them ‘guilty’ for alleged transgressions of employment rules and even for bringing the good name of a political party into disrepute. Fortunately two Labour Court judges have seen the light and supported the call for appropriate language to be used in the employment context.
Barbra Streisand and Barry Gibb sang the famous duet “Guilty” with words such as ‘make it a crime to be lonely or sad’ or ‘out in the cold’. It seems that many citizens do not have a problem in ‘convicting’ fellow citizens of being ‘guilty of crimes’ that are no more than breaches of internal rules. How the Democratic Alliance (DA) could find Dianne Kohler-Barnard ‘guilty of misconduct’ is mind-boggling and it just proves that it is time to reword the DA constitution. Perhaps it stems from many court judgments that routinely find that employees have been ‘guilty’ of insubordination, coming to work late and being AWOL.
It is understood that section 2.5.4 of the DA’s constitution, provides that any member may be ‘guilty of misconduct’ if he or she commits a range of possible offences. These include:
“deliberately act[ing] in a way which impacts negatively on the image or performance of the party”; “bring[ing] the good name of the party into disrepute or harm[ing] the interests of the party”; and “in any way intimidat[ing], or sexually harass[ing] in any manner, any member of the party or staff members”.
Our Constitution stresses the values relating to human dignity, equality and freedom but strangely it also refers to ‘guilty of gross misconduct’ in relation to the removal of judges without requiring proof of any criminal offence. So judges may only be removed from office if the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
A subscriber has asked for an appropriate wording instead of finding an employee ‘guilty as charged’.
The LRA simply requires a valid and fair reason related to conduct, etc.
Fairness
So only the factual allegations (and not the evidence) must be set out in a written statement and the employee allowed to respond (to be heard).
If the employee cannot dispute the allegations management can treat them as true, and management must then decide:
# if there is a valid ’employment’ relationship with the undisputed facts; and if so
# would it be fair assuming the relationship of trust and confidence has been seriously damaged or destroyed by the employee.
If that is so management need simply record that employment has been terminated for a valid and fair reason related to conduct.
Conradie JA in the LAC many years ago clearly stated that it is not the function of management to punish employees nor to find them ‘guilty’ of any ‘charges’.
Management’s function is to protect the enterprise and the stakeholders by setting and enforcing reasonable standards of behaviour and performance.
Lawfulness
Remember that a decision regarding fairness is just the first part of the two-stage process.
If the reason does not involve gross misconduct the employee is legally entitled to receive reasonable notice, or payment instead of notice, even if the reason for dismissal is fair.
Remember also if the reason is based on ‘operational requirements’, and not conduct or performance, employees must also receive ‘severance pay’.
Reasonable notice is a legal requirement of the common law and the BCEA, which provides that notice must always be given to end a contract, unless there is gross misconduct (in other words a cause recognized by law as sufficient to justify summary dismissal).
Achieving a balance
Th law does not guarantee anyone a job for life. Some citizens such as judges are appointed for life, in the sense that they continue to receive a monthly income and other benefits even after reaching the retirement age. Judges effectively have a ‘job for life’, except in exceptional circumstances.
For everyone else the law achieves a balance between the rights of the enterprise and the employees by only promising employees the ‘right not to be unfairly dismissed’.
Employees who behave very badly [gross misconduct] cannot expect to remain employed and they forfeit any right to any notice.
Enterprises must be competitive, sustainable and effective and can dismiss for a valid and fair reason, but must provide reasonable notice, and in many instances ‘severance pay’ as well.
So churches also charge pastors and find them guilty and sentence them as well, and not a peep from the Constitutional Court.
De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (CCT223/14) [2015] ZACC 35 (24 November 2015) per Moseneke DCJ (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring)
[emphasis added]