National Nuclear Regulator v CCMA (JR3104/12) [2016] ZALCJHB 177 ; [2017] JOL 36763 (11 May 2016) per ME Phala AJ.

The Labour Court reviewed and set aside an arbitral award which found that a dismissal was unfair for lack of proof of ‘fault’.  In other words the employee had argued that he was not obliged to comply with the usual working hours.  He also argued that earlier warnings had ‘expired’.  The Labour Court held that the arbiter’s approach was misconceived and unreasonable.

The judgment is important because it reinforces the requirement that a valid and fair reason only has to relate to ‘conduct’ and not ‘misconduct’.  Progressive discipline was properly applied, but in the end the employee destroyed the necessary relationship of confidence in his ability to be at work during the usual office hours.  Because the conduct was not gross the employee did not forfeit his right to reasonable notice pay.  It is not clear from the judgment whether or not he was summarily dismissed (without notice or payment instead thereof).

Excerpts without footnotes

[83]      In terms of the Concise Oxford Dictionary of Current English dispensation means ‘exemption from a penalty or duty’.  The pertinent question was whether the parties understood the exemption from a material term of the contract to subsist for indefinite period and ultimately having the effect of changing the terms and conditions of employment.

. . . . .

[104]   The Second Respondent’s approach was that the Applicant was precluded from relying on the lapsed written warning which with respect was incorrect.

In the Labour Appeal Court case of National Union of Mineworkers obo Selemela v Northam Platinum Ltd, [2014] 9 BLLR 870; (2013) 34 ILJ 3118 (LAC) at para 38 the Court quoted the case of Gcwensha v CCMA and Others [2006] 3 BLLR 234 (LAC) with approval . . . .[see below for accurate quote]

[105]   It is clear that an employee who demonstrates a propensity for committing misconduct cannot escape the consequences of his or her conduct simply because a past warning has expired.  Disciplinary action under the Labour Relations Act 66 of 1995, as amended, (“LRA”) is not a rigid process which fails to take into account the various parties’ interests.

Comment:

The actual wording of para [38] reads as follows and not as quoted by Phala AJ.

“Indeed, an employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings.

In Gcwensha v CCMA and others, this Court stated as follows:

“An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct.  To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings.  An employee’s duties include the careful execution of his work.  An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances.”

The incorrect citation as quoted by Phala AJ

‘An employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/misconduct. To do otherwise would be to subject and employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, failing outside the periods of applicability of final written warnings.

The court found further that the final written warning will have added importance if the conduct to which it relates is of the same nature as the conduct the employee is subsequently charged with in the disciplinary enquiry.‘