“Acknowledgement of wrongdoing is the first step towards rehabilitation.   In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken.   Where . . .  an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great”.

“The frauds by the two employees were committed in the course of a routine activity which they were expected to perform frequently.   When the vital question of recidivism [reoffending, repetition, habit, tendency, backsliding] is considered, it is relevant to note that neither employee expressed the slightest remorse.   At their disciplinary enquiry each put up a defence which was manifestly dishonest.   The [employer] took the attitude, and I think quite correctly, that this was a further indication that they could no longer be trusted.   The commissioner did not say why she thought that their further dishonesty during the disciplinary enquiry was not gravely inimical to the already damaged trust relationship”.

Protection not punishment

Justice of Appeal Johan Conradie in the Labour Appeal Court in De Beers Consolidated Mines Ltd v CCMA [2000] 9 BLLR 995 (LAC) delivered one of the most important judgments in the short history of industrial relations and employment law in South Africa.   The above quotations come from that judgment.   Reading the full judgment is highly recommended, especially to contrast it with that of the other two judges of appeal.   Conradie JA also stressed the need for managers to understand how to act in the best interests of the enterprise.   Managers are not required to punish employees.   Managers ensure that standards are maintained so that the enterprise functions properly, thereby also ensuring jobs for citizens.

Avoid criminal type proceedings

It is completely wrong to adopt an approach more akin to criminal proceedings than an investigation.   The sole purpose of criminal proceeding is to prove guilt beyond a reasonable doubt and then to punish the individual.   Managers protect the interests of the enterprise and there is no need to think of punishing employees.   The use of language found in criminal proceedings should be avoided at all cost.   It mistakenly allows managers to think that they are intent on punishing employees.   This is the function of the police and the criminal courts and, unlike managers, they enjoy protection from claims for defamation and injury if they perform their functions properly and lawfully.

Sound management dismissal practices

To assist practitioners some important points have been extracted from the judgment of Conradie JA:

  • Standards of behaviour are the same for all employees.
  • Dismissal related to (mis)conduct should be a sensible operational response to risk management and is rooted in operational requirements and not in the need for punishment, an expression of moral outrage or an act of vengeance.
  • The seriousness of dishonesty depends on the impact on the enterprise and not on the act of dishonesty itself.
  • Managers should only dismiss employees who have been shown to be dishonest if managers are unwilling to risk continued employment.
  • Long service may be a weighty consideration but is only relevant in determining whether employees are likely to repeat their misdemeanours and so the risk factor is paramount.
  • Employees with long and faithful service have shown that they are unlikely to misbehave.
  • Managers may accept the risk of continued employment after it is known that an employee was not as honest as had been thought.
  • Employees should be dismissed 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 will be operationally too risky.
  • Mitigation, as that term is understood in the criminal law, has no place in employment law because the focus is on risk management, not punishment.
  • Supermarket shelf-packers who steal small items are routinely dismissed because it has everything to do with the operational requirements of the enterprise.

Recent arbitral award in the CCMA

The judgment of Conradie JA was referred to with approval in the recent matter of Hardways Nyabasa / Laurens Barnard t/a Laubar Art [2014] 6 BALR 616 (CCMA).

An artist dismissed the person working for him after it transpired that R20 000 paid by the African National Congress was pocketed by the employee.   The employee claimed to have done all the work for an exhibition arranged for the ANC but at which no paintings were actually sold. The employee admitted instructing the ANC to pay the money into his account as payment for the work he had done at the auction.   The employee bought a car with the proceeds and gave conflicting explanations about the money.

In finding that the artist had proved that there was a valid and fair reason for the dismissal the commissioner mentioned the corrosive effect of dishonesty and persistent denials on an employment relationship before quoting a passage from the judgment of Conradie JA.   So the dismissal was substantively fair but it was held to be procedurally unfair because the artist had failed to have regard to the Code of Good Practice: Dismissals.

Despite this finding of unfair procedure the commissioner in the exercise of a discretion did not deem it just to award any compensation for such unfairness given that the employee had kept the money.