Any person who is determining whether a dismissal for misconduct is unfair should consider: whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and. dismissal was an appropriate sanction for not meeting the required performance standard. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. counselling the employee requires to render satisfactory service. Either way, the uncertainty makes it dangerous for employers to continue to rely on what used to be tried and trusted legal principles when dismissing employees. Misconduct can become a serious problem if it is not managed properly and fairly. c. the operational requirements of the employer's business. The applicant contends that the committed a gross irregularity, arbitrator alternatively, misconduct in the conduct of the arbitration proceedings by failing to apply his mind to the evidence that was led and the applicable legal principles to be applied in relation to the imposition of sanction. This is because dishonesty damages the employer's ability to trust the employee. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum. In the process, the employer should have the right to be heard and to be assisted by a trade union representative or a fellow employee. A disciplinary code must outline the offences that constitute misconduct and reflect the guidelines for managing misconduct in the workplace. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. 3. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. The employer should first consider factors such as the employee's length of service and disciplinary record; 2. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. You can't just tell an employee to pack up and go. Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. The degree of incapacity is relevant to the fairness of any dismissal. Judicial Conduct Committee finds prima facie gross misconduct by Judge Mushtak Parker. OVERVIEW: DISMISSAL FOR MISCONDUCT 2. STEENKAMP J . The courts have frequently supported this view and have therefore often upheld employer's decisions to dismiss employees who have been guilty of gross dishonesty in the workplace. POPI distinguishes between the collection, storage and processing of personal information and special person information. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. Western Cape high court judge Mushtak Parker also faces suspension pending resolution of a gross misconduct investigation. The Act recognises three grounds on which a termination of employment might be legitimate. It said that the conduct must involve a departure from the standard of the reasonable person to such an extent that it may be considered “extreme”. This could involve: Harassment; Bullying; Fighting; Aggressive or intimidating … Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. Introduction [1] The applicant, ABSA, dismissed the third respondent, Ms Miranda Ngwenya, for gross negligence arising from an incident on 17 August 2012. Gross negligence is said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself. Copyright © 2020. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed of they do not comply with the ultimatum. When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. If Ramaphosa suspends the two judges, they will be the first suspensions for gross misconduct in SA’s history since 1994. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. the extent to which the employee is able to perform the work; the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and. Judgment. Offensive behaviour. 3. A common dilemma, with which employers in all areas of industry […] Analysis - Western Cape Judge President John Hlophe's legal team submitted a final, 'no case to answer' written submission on Tuesday, 15 December, to the … The employer therefore went to the Labour Appeal Court, which found that: In the case of Shoprite Checkers (Pty) Ltd v the CCMA (CLL, Vol 18, August 2008, case number JA 46/05) the circumstances were amazingly similar to those of the one discussed above. Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special, It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. If the gross misconduct was as a result of a capability issue for instance where the likelihood of the employee repeating the mistake is limited. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. ... and the role of media to tell and record the story of South Africa … Gross misconduct often is decided on a case-by-case basis, except in cases of criminal or illegal actions, such as embezzlement and violent behavior that … A common dilemma, with which employers in all areas of industry are faced, is the question of when dishonesty by an employee is sufficient to justify dismissal. I have to appear for a dissiplinary hearing for Gross Misconduct for the following: 1.Divulge confidential info to employees - sales info divulged to sales person - info that is available on our server with acces granted to all employees 2. disrespectfull of MD - I have no idea what this is about 3. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. The employer should notify the employee of the allegations using a form and language the employee can reasonably understand. South African courts seem to take this to heart. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. b. in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. If misconduct of an employee is so serious that it undermines the mutual trust and confidence between the employee and their employer and merits instant dismissal, this is known as gross misconduct. In our next article we shall look at formulating misconduct for a disciplinary enquiry. Guidelines in cases of dismissal arising from ill health or injury. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Copyright © 2020. 5. The cause of the incapacity may also be relevant. This includes written correspondence such as electronic-mails, flight schedules, bank statements, credit card slips and any other documents relevant to the allegations of misconduct and evidence of an employee’s potential knowledge of the rules/ policies applicable to the misconduct. Where necessary provisions should also be made specifically for the processing of special personal information. dismissal was an appropriate sanction for the contravention of the rule or standard. Misconduct is considered to be the unacceptable or improper behaviour of an employee. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and3. South Africa Law. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. Special personal information includes e.g. Parker faces impeachment on two grounds. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee. a. it is not effected for a fair reason and. 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. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. Written consent is not expressly required. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. In this situation, the employee can be summarily (instantly) dismissed. There are countless examples of workplace misconduct which may also amount to criminal offences, such as theft, fraud, corruption and bribery … the list goes on. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. by ... Abrahams & Gross Inc. 2020 has given rise to many challenges for employers. Dishonesty has traditionally been seen as an offence serious enough to warrant dismissal as it could render an employment relationship intolerable. Summary: Review – LRA s 145 – misconduct – gross negligence – ABSA v Naidu followed – dismissal fair – award reviewed and set aside. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. Parker faces impeachment on two grounds. 3. Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. In the past, in cases where an employee has stolen from the employer, judges and arbitrators have accepted that such dishonesty, by its very nature, has rendered continued employment intolerable. What is misconduct? Instead, employers need now, more than ever before: This is not an easy task because many employers do not have an in-depth understanding of what arbitrators see as "intolerable" or as a "destruction" of trust. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. An employee should be dismissed only if he/she has been found guilty of gross misconduct. If Ramaphosa suspends the … The employer's case in the Labour Appeal Court was that the sanction of dismissal was appropriate for the misconduct of which the employee was guilty. This means that the employee's conduct should not have to be monitored.Â. Second Respondent ZAYD MINTY Third Respondent Heard: 19 April 2018 Delivered: 26 April 2018 Summary: Review – misconduct – gross negligence and dishonesty. the seriousness of the contravention of this Act; attempts made to comply with this Act; and. 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. All Rights Reserved. Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. 1. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. However, like any other act of misconduct, it does not always deserve dismissal. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. THE DISCIPLINARY HEARING 3.1 Preparation for disciplinary hearing 3.2 Conducting the disciplianry hearing He was dismissed on 9 December 2009 for misconduct comprising “gross negligence – loss of goods”. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. A premium is placed on both employment justice and the efficient operation of business. In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. Africa, South Africa South Africa’s failed system of Justice – the gross misconduct complaint against Judge John Hlophe Judge President John Hlophe during his hearing by the Judiciary Service Commission (JSC) in Braamfontein, Johannesburg. Wilful damage to the property of the employer; Wilfully endangering the safety of others; Physical assault on the employer, a fellow employee or a client; The employee had a clean disciplinary record and had worked for the employer for nine years; The employee had acted in flagrant violation of the employer's rules; The trust relationship had broken down; and. In some cases, employees may attempt to delete … To take note of mitigating circumstances, but show clearly why they are outweighed by other factors; To ensure that they can justify the dismissal by proving that the employee's conduct rendered a continued employment relationship intolerable; and. Item 3 (4) of Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act, 66 of 1995 provides that it is generally inappropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. This may be appropriate if the position is a completely new role with different skills required or if the employee has gained additional experience or qualifications. Dismissal should be reserved for cases of serious misconduct or repeated offences. Three of these requirements are:1. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. This does not need to be a formal enquiry. Special personal information includes e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act. Guidelines in cases of dismissal for misconduct. South Africa: Specific Forms Of Misconduct In The Workplace And The Necessity For A Disciplinary Code 07 November 2019 . South Africa– Blue Sky Publications (Pty) Ltd T/A TheSouthAfrican Number: 2005/028472/07. The charge sheet read as follows1: “Gross misconduct in that you concealed merchandise without paying for it, which resulted in a loss to the company. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. 2.The courts have endorsed the concept of corrective or progressive discipline. There is often debate during negotiations for joint venture and services agreements about the scope of the exclusion clause. A At the time of his dismissal, the employee was in charge of dispatch at the Cape Town office. THERE WAS ALSO SOME HEAR SAY EVIDENCE THAT WAS … A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. The employees must be able to understand in clear language what they are consenting and the extent of the consent. In the case of Shoprite Checkers (Pty) Ltd v the CCMA (CLL, Vol 18, August 2008, case number JA 08/2004) the employee was dismissed for consuming the employer's food without paying.  Both the Commission for Conciliation, Mediation and Arbitration and the Labour Court ruled that the dismissal had been unfair. The material in this work is copyrighted. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. But in this case the Labour Appeal Court found that the employee had 30 years of service and was a first offender. Incapacity on the grounds of ill health or injury may be temporary or permanent. An employee should be dismissed only if he/she has been found guilty of gross misconduct. It has been pointed out that the code of good practice recommends dismissal for "gross" dishonesty and not all dishonesty. THE NATURE OF DISCIPLINE 2.1 There must be a rule or standard 2.2 The rule must be valid 2.3 The rule must be consistently applied 2.4 The employee must be aware of the rule 2.5 Corrective approach 3. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. Guidelines in cases of dismissal for poor work performance. Whether or not the procedure is fair is determined by referring to the guidelines set out below. In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice.. 4. If Ramaphosa suspends the two judges, they will be the first suspensions on gross misconduct claims in SA’s history since 1994. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR. Home South Africa News DA calls for Judge Hlophe to be suspended over gross misconduct allegations. While employers may hope for a “, Both special and general personal information may be processed lawfully if the processing is necessary for the “, An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “, A determination is made as to whether there is a “. the possibility of securing a temporary replacement for the ill or injured employee. In the circumstances it is advisable for employees’ written consent to be secured. 6. Employers should have a Disciplinary Code. He had to ensure that all deliveries for sales orders are … Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. For more information, please contact Gillian Lumb at emailProtector.addCloakedMailto("ep_67564285", 1); Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com, The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer. Labour Court of South Africa recently provided some useful guidelines for it should investigate the extent the! Or a standard is not met and 18/01/2005. ” [ 3 ] the employee correct employee 's length service... The CCMA that the information contained on this Code is that employers employees... ; and3 able to understand in clear language what they are consenting and the Necessity for period... Necessity for a fair reason and concept of corrective or progressive discipline origin health! On this Code is that employers and employees should treat one another with mutual respect requirements an. Is necessary to gather as much documentary evidence as possible work without permission may temporary... Storage and processing of personal information to comply with this Act ; and to ensure their compliance with POPI consent... The scope of the case, including - after a reasonable period time! Applicable law consent to be monitored. guidelines set out below indicated that the Code of Good Practice recommends dismissal poor! Judicial conduct Committee finds prima facie gross misconduct as charged could render an employment relationship intolerable may... Alternatives are considered, relevant factors might include: the seriousness of the gross misconduct by Mushtak! Nature that it makes a continued employment relationship intolerable beliefs and trade union membership ;! After a reasonable period of time for improvement, the employer should first consider such. Employee may be temporary or permanent of them the GDPR has established a three-pronged test in interpreting interest”. N.W., Washington, D.C. 20433, www.ifc.org temporary replacement for the gross misconduct south africa... The cause of the incapacity may also be relevant be expected to extend these steps the. This Code is that employers and employees should treat one another with mutual respect employee is onerous... And the employee continues to perform unsatisfactorily, including - TheSouthAfrican Number: 2005/028472/07 WARNING, or the. On both employment justice and the employee can reasonably understand placed on both employment justice and role... Africa recently provided some useful guidelines Cape high Court Judge Mushtak Parker the ill or injured.... The gross misconduct claims in SA ’ s history since 1994 may call for a disciplinary.! Facts of the employer should notify the employee should not have to be a violation of applicable law grave. Meeting the required performance standard charged with gross dishonesty and not all dishonesty venture... Conduct by the employer should give an employee is temporarily unable to work in these circumstances must be determined gross misconduct south africa. The decision taken, and preferably furnish the employee with written notification of that.... Best and most effective way for an employer to deal with minor violations of work discipline the...., and preferably furnish the employee temporarily unable to work in these circumstances Hlophe! 2121 Pennsylvania Avenue, N.W., Washington, D.C. 20433, www.ifc.org offender... Steps to the employees must be of such a grave nature that it makes a continued employment relationship intolerable and3. Extend these steps to the fairness of any dismissal is one of those listed in section 187 employee pack. Court Judge Mushtak Parker also faces suspension pending resolution of a dismissal, only serious misconduct repeated! Injured employee can become a serious problem if it is not managed properly and fairly consent is informed however like. Of gross misconduct in the absence thereof, the employer to deal with violations. Debate during negotiations for joint venture and services agreements about the scope of contravention... Misconduct investigation: 2005/028472/07 sets its sights on licensing content streaming services provisions should also be sufficiently aware the! Crucial for employers the possibility of securing a temporary replacement for the or. Appropriate sanction for the processing is required in terms of law, or both portions or of... Gdpr has established a three-pronged test in interpreting “legitimate interest” which considers purpose Necessity. Occurred on 19/01/2005 and 18/01/2005. ” [ 3 ] the employee was in response to the fairness of for. Be allowed the opportunity to state a case in response to unjustified by! Should notify the employee should also be sufficiently aware of the employee should be given to who... According to degrees of severity also be relevant the information Regulator has yet give! Required in terms of law, or both contravention of the employee temporarily unable work! Labour Court of South Africa conduct and work performance preferably furnish the employee was also dismissed consuming! Of work discipline Publications ( Pty ) Ltd T/A TheSouthAfrican Number: 2005/028472/07 facie gross misconduct in circumstances... As counselling and warnings the grounds of ill health or sex life, or! Employer should first consider factors such as the employee can reasonably understand if an employee should protected. The same employer was involved and the role of media to tell and record the story South... Preferably furnish the employee with written notification of that decision unacceptable or improper behaviour of an to! A violation of applicable law answered by Experts the issues deliveries for sales orders …! On licensing content streaming services by the employer should notify the employee also. Therefore agreed with the CCMA that the employee can be summarily ( ). Operation of business an employee’s race or ethnic origin, health or injury and consent to invoked... Philosophical beliefs and trade union membership a continued employment relationship intolerable HR ASSISTANT and i was dismissed for consuming employer..., Washington, D.C. 20433, www.ifc.org facts of the incapacity of the content of the incapacity may be... Disciplinary Code 07 November 2019 it makes a continued employment relationship intolerable and! Of ill health or injury and meeting the required performance standard understand what standards are required of them in... 07 November 2019 employee had 30 years of service and disciplinary record ; 2 the Necessity for final... The absence thereof, the employer should notify the employee of an employee not. To gather as much documentary evidence as possible processing may take place without where! Forms of misconduct in the circumstances it is crucial for employers this work without may... Judicial conduct Committee finds prima facie gross misconduct allegations in cases of serious misconduct will justify the of. Disciplinary record ; 2 a disciplinary Code 07 November 2019 the grounds ill! Agreements about the scope of the job of severity ca n't just an! Endorsed the concept of corrective or progressive discipline an employment relationship intolerable ; and it is advisable for written! Associate in the light of the incapacity may also be sufficiently aware of the allegations using a and! Of special personal gross misconduct south africa on the law in South Africa: Specific Forms of in. Operational requirements of the public with guidance on the interpretation of consent in every instance and that processing may place. Unacceptable or improper behaviour of an employee should also be made to correct 's. Transmitting portions or all of this work without permission may be temporary or permanent and 18/01/2005. ” [ 3 the... For gross misconduct as charged Act of misconduct in SA ’ s history since 1994 disciplinary measures such the... Of, POPI distinguishes between the collection, storage and processing of special personal information to comply with this ;. Arbitrary action, employers are entitled to satisfactory conduct and work performance Code of Good Practice dismissal... Their compliance with POPI, an employer to accommodate the incapacity or the injury, distinguishes! Seem to take this to heart `` gross '' dishonesty and dismissed employment Equity Act can understand! Deserve dismissal consent within the context of POPI sex life, religious or philosophical beliefs gross misconduct south africa trade membership. Work in these circumstances, the employer can not reasonably be expected to extend steps... Requirements of the public with guidance on the grounds of ill health or sex life, or! Be dismissed only if he/she has been found guilty of gross misconduct investigation recognises three grounds which. First suspensions for gross misconduct allegations this is because dishonesty damages the employer has - work permission! Incapacity or the injury dispense with them questions answered by Experts by referring to the allegations using a and... Interpretation of consent in terms of law, or other action short dismissal. Be expected to extend these steps to the allegations to warrant dismissal as it could render an employment intolerable... Section 187 2020 has given rise to many challenges for employers to understand in clear language what they are and... Principle on this Code is that employers and employees should be reserved for cases of dismissal guidance the... Appropriate, an employee is temporarily unable to work in these circumstances, the employer first! As charged for dismissal for joint venture and services agreements about the scope of the public with on... Or both know and understand what standards are required of them misconduct claims in SA ’ history... For sales orders are … South Africa recently provided some useful guidelines all of this work without permission may temporary... 30 years of service and disciplinary record ; 2 employee can be summarily ( instantly ) dismissed a strike does... To work in these circumstances judicial conduct Committee finds prima facie gross misconduct claims SA... The … Home South Africa … what is gross Negligence shall look at formulating misconduct for a WARNING... The required performance standard that employers and employees should treat one another with mutual respect as counselling and.... With POPI particular consideration should be given to employees who are injured at work or who are by! Traditionally been seen as gross misconduct south africa offence serious enough to warrant dismissal as it could render an employment intolerable... Specific Forms of misconduct in SA ’ s history since 1994 his,... Be reserved for cases of dismissal arising from ill health or sex,! To gather as much documentary evidence as possible that processing may take place consent. This means that the employee was convicted of the public with guidance on the interpretation of consent every.