Paris embassy death: Unfair reason to dismiss diplomat

This judgment of the Labour Court again stresses that enforcing discipline does not have anything to do with punishment.  It also draws a clear distinction between the validity of a reason to dismiss and the need to then consider the fairness of the reason.  Fairness has everything to do with the consequences of the conduct.  What impact did it have on the trust relationship if the conduct consisted of anything other than poor performance or ill health or even injury.  In other words trust can only be destroyed by deliberate action.  But confidence is an employee’s ability to do the job can be destroyed by anything that is not deliberate, such as inability to do the job properly.  Labour and employment law does not oblige management to tolerate conduct or capability that does not meet the required reasonable standards set by the employer.  That is why employees can be dismissed for reasons based on operational requirements.  Usually the business needs do not have anything to do directly with employees, but they can still be dismissed lawfully and fairly.  What the law does require in such circumstances is:

• joint consensus-seeking;
• reasonable notice of termination, or payment instead thereof; and
• severance pay of not less than one week for each completed year of continuous service.

“Bargaining council arbitration proceedings – Review of proceedings, decisions and awards of arbitrators – Test for review – Section 145 of LRA – application of review test set out – determinations of arbitrator compared with evidence on record – commissioner’s decision irregular and unsustainable – award reviewed and set aside

Misconduct – inconsistency – principles considered – dismissal of employee contrary to requirement of consistency – dismissal unfair

Misconduct – issue of appropriate sanction – principles considered – progressive discipline justified – dismissal inappropriate sanction and unfair – dismissal of employee substantively unfair

Practice and procedure – award reviewed and set aside – appropriate relief considered – Section 193(2) considered – exceptions do not apply – reinstatement awarded

Practice and procedure – determination of back pay in the case of reinstatement – principles considered – back pay limited”.

Introduction

[1] If this was not an actual case that came before this Court, one could be forgiven for believing it was a tale coming straight out of a Hollywood script – there is a diplomat in Paris, an embassy function, followed by a night of partying and drinking, that ended in the body of a deceased young woman being found in the apartment of the diplomat. But it was real life, with the incident featuring in the foreign and local press, and resulted in the diplomat losing his job and ending his career. This tragic story then came before a bargaining council arbitrator to decide the fairness of the dismissal of the diplomat.

. . . .

[44] Where there is some level of tolerance for alcohol consumption per se, which seems to be part and parcel of life in the diplomatic core, the surpassing by an employee of that level of tolerance requires progressive discipline before dismissal.[30] This is clearly an entirely different situation to those cases where an employee works in a dangerous working environment and where any consumption of alcohol would be a danger to the employee and his or her fellow employees, or would be even prohibited by law (such as the mining industry), both being cases where a zero tolerance approach is essential.[31] In the kind of cases where a level of tolerance is permitted, it does not mean that employees escape being held accountable, if they exceed this level of tolerance. But what it does mean, is that the objective of discipline in such a case would have to be to impress upon the employee that he or she has transgressed and that this is considered to be misconduct, and that through the application of discipline it is ensured that this transgression does not happen again. The employee, who ventured out of the employment fold, so to speak, is brought back into the fold, but with conditions attached to resist a repetition of the misconduct. In Timothy v Nampak Corrugated Containers (Pty) Ltd[32] the Court said:

‘… Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer’s organization, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct. …’

[45] In my view, a conspectus of the evidence shows that the individual applicant had a singular lapse of judgment, considering that his conduct on the day was uncharacteristic. He should have known better than to continue to revel the night away when he was already approaching intoxication much earlier in the evening. But there was no evidence or indication that he was a habitual miscreant where it came to these kind of situations. This kind of singular error in judgment cries out for progressive discipline, which would more than likely make the individual applicant a very cautious employee where it comes to possible excessive alcohol consumption in the future. That kind of result is what progressive discipline is all about.[46] A final written warning to the individual applicant for his breach of the Code in respect of his conduct on 31 August and 1 September 2012 would have impressed upon him the error of his ways, and would have made it clear that any such future transgression would result in the loss of his job. In Gcwensha v Commission for Conciliation, Mediation and Arbitration and Others[33] the Court held:

‘I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal.’

. . . . .

59] In summary, the totality of circumstances, considered in the context of a balanced evaluation so as to be fair to both parties, convinces me that the dismissal as a sanction, in the case of the individual applicant, was unfair. In arriving at this conclusion, I consider that:

(1) the gravity of the misconduct was not sufficiently serious to justify dismissal per se;

(2) the application of progressive discipline is viable to remedy the misconduct and avoid a repetition of it in the future;

(3) the personal circumstances and disciplinary record of the individual applicant mitigate against dismissal;

(4) the individual applicant has shown the requisite genuine remorse for his misconduct;

(5) there exists no regulatory provisions prescribing dismissal;

(6) any harm to the third respondent resulting from the misconduct is easily remediable, and pales by comparison to the harm to the individual applicant;

(7) the trust relationship cannot be seen to have completely broken down; and

(8) the reason why the individual applicant was dismissed was rather in reaction to publicity that a real reaction to the nature of the misconduct the individual applicant committed.

In the end, the continued employment of the individual applicant posed no meaningful risk to the third respondent, and dismissing the individual applicant in this case was more of an expression of outrage than real risk management. As said in De Beers[41]:

‘A 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. …’

[60] My conclusions as set out above serve to illustrate, in the context of the second part of the review test, that the outcome arrived at by the second respondent cannot be considered to be a reasonable outcome, on any grounds. The proper factual matrix and balanced consideration of the sanction principles can only result in a conclusion that the individual applicant’s dismissal was too harsh, inappropriate as a sanction, and thus unfair. The second respondent’s determination to the contrary is not a reasonable outcome. In the end, a final written warning issued to the individual applicant for his misconduct would have sufficed, and this could be the only reasonable outcome that could have been arrived at.