gross misconduct south africa

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. South Africa: Specific Forms Of Misconduct In The Workplace And The Necessity For A Disciplinary Code 07 November 2019 . If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. 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. 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. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. THE DISCIPLINARY HEARING 3.1 Preparation for disciplinary hearing 3.2 Conducting the disciplianry hearing He had to ensure that all deliveries for sales orders are … In the absence thereof, the employer will need to prepare and secure a further consent from the employee. 2. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. 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. 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”. 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 employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed. The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others,25 this Court held: dismissal was an appropriate sanction for the contravention of the rule or standard. 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. Misconduct can become a serious problem if it is not managed properly and fairly. All Rights Reserved. The material in this work is copyrighted. The employer should first consider factors such as the employee's length of service and disciplinary record; 2. Generally, it is not appropriate 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. 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. Three of these requirements are:1. This could involve: Harassment; Bullying; Fighting; Aggressive or intimidating … Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. 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. 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. An employee should be dismissed only if he/she has been found guilty of gross misconduct. 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 … 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. It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. This is because dishonesty damages the employer's ability to trust the employee. Special personal information includes e.g. 6. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and3. The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct. THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN JUDGMENT Case no: C 871/16 In the matter between: CITY OF CAPE TOWN Applicant and SALGBC First Respondent A SINGH-BOOPCHAND N.O. 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. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. 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”. 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. POPI distinguishes between the collection, storage and processing of personal information and special person information. Whether or not the procedure is fair is determined by referring to the guidelines set out below. Copyright © 2020. 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. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. Dishonesty has traditionally been seen as an offence serious enough to warrant dismissal as it could render an employment relationship intolerable. 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. 5. A common dilemma, with which employers in all areas of industry […] Where necessary provisions should also be made specifically for the processing of special personal information. South Africa Law. Parker faces impeachment on two grounds. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act. Guidelines in cases of dismissal for misconduct. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. In some cases, employees may attempt to delete … 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. 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. When alternatives are considered, relevant factors might include: the seriousness of the illness or injury and. 3. I AM AN HR ASSISTANT AND I WAS DISMISSED FOR GROSS MISCONDUCT IN AUG 2013 FOR ISSUING A WARNING INCORRECTLY. In our next article we shall look at formulating misconduct for a disciplinary enquiry. The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. 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. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?”. 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. Guidelines in cases of dismissal arising from ill health or injury. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. More recently, though, there has been a noticeable shift away from this view. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The implication is that not all acts of dishonesty make the employment relationship intolerable and therefore merit dismissal.Â, Adding to the complexity of the debate is the fact that the concept of trust is a tricky one, often difficult to define. 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 … Source: Emma Whitelaw, an Associate in the Employment Law Department at Bowman Gilfillan, Cape Town, details the issues. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings. They were as such each charged with gross dishonesty and dismissed. It has been pointed out that the code of good practice recommends dismissal for "gross" dishonesty and not all dishonesty. Misconduct is considered to be the unacceptable or improper behaviour of an employee. 2.This Act emphasises the primacy of collective agreements. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. Introduction [1] The applicant, ABSA, dismissed the third respondent, Ms Miranda Ngwenya, for gross negligence arising from an incident on 17 August 2012. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is: a. one that amounts to an infringement of the fundamental rights of employees and trade unions, or. 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. Summary: Review – LRA s 145 – misconduct – gross negligence – ABSA v Naidu followed – dismissal fair – award reviewed and set aside. A disciplinary code must outline the offences that constitute misconduct and reflect the guidelines for managing misconduct in the workplace. OVERVIEW: DISMISSAL FOR MISCONDUCT 2. THERE WAS ALSO SOME HEAR SAY EVIDENCE THAT WAS … But in this case the Labour Appeal Court found that the employee had 30 years of service and was a first offender. Written consent is not expressly required. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. If Ramaphosa suspends the … POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. by ... Abrahams & Gross Inc. 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. 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”. 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 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. 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. Disciplinary procedures prior to dismissal. The employees must be able to understand in clear language what they are consenting and the extent of the consent. 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 -. This means that the employee's conduct should not have to be monitored.Â. It is unclear whether it was the stronger mitigating circumstances of the second case that made the difference or whether the Labour Appeal Court judges sitting in the two cases merely interpreted the law differently. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Copyright © 2020. The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. Judicial Conduct Committee finds prima facie gross misconduct by Judge Mushtak Parker. STEENKAMP J . Special personal information includes e.g. The South African government sets its sights on licensing content streaming services. The real Life on Mars squad: Six police officers guilty of gross misconduct joked about migrants drowning, used a lewd video to taunt a black colleague and spouted vile homophobic abuse 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. ... and the role of media to tell and record the story of South Africa … 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 “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. 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. During an investigation process it is necessary to gather as much documentary evidence as possible. 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 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. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. Offensive behaviour. 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. What is Gross Negligence? The cause of the incapacity may also be relevant. Home South Africa News DA calls for Judge Hlophe to be suspended over gross misconduct allegations. A premium is placed on both employment justice and the efficient operation of business. 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. 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. 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.. Not all misconduct will justify the sanction of a dismissal, only serious misconduct will. 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. The Labour Appeal Court therefore agreed with the CCMA that the dismissal had been too harsh. 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. 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. The question of whether, at common law, clauses exempting liability for gross negligence on the part of carriers or depositees are permissible does not appear to have received much attention from South African courts in the last 60 years. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. 2020 has given rise to many challenges for employers. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. 4. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. 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 possibility of securing a temporary replacement for the ill or injured employee. The same employer was involved and the employee was also dismissed for consuming the employer's food without paying for it. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. 2020 has given rise to many challenges for employers. The Labour Court of South Africa recently provided some useful guidelines. The degree of incapacity is relevant to the fairness of any dismissal. if a rule or standard was contravened, whether or not; the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and. All Rights Reserved. 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. 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. 2121 Pennsylvania Avenue, N.W., Washington, D.C. 20433, www.ifc.org. counselling the employee requires to render satisfactory service. You can't just tell an employee to pack up and go. 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. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. 1. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. 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. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR. Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA), The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer. 2.The courts have endorsed the concept of corrective or progressive discipline. A At the time of his dismissal, the employee was in charge of dispatch at the Cape Town office. 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. Labour Guide. 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 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. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. What is misconduct? This occurred on 19/01/2005 and 18/01/2005.” [3] The employee was convicted of the gross misconduct as charged. 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. 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. 3. Employers should have a Disciplinary Code. In the circumstances it is advisable for employees’ written consent to be secured. 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 an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and. Get your South African law questions answered by Experts. whether or not the strike was in response to unjustified conduct by the employer. This would cover instances where e.g. c. the operational requirements of the employer's business. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances, including: the circumstances of the infringement itself. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. 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. Labour Guide. 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. The Act recognises three grounds on which a termination of employment might be legitimate. 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. Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law. He was dismissed on 9 December 2009 for misconduct comprising “gross negligence – loss of goods”. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. 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. South African courts seem to take this to heart. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee. 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. ARTICLE TAGS. The employer should first consider factors such as the employee's length of service and disciplinary record; 2. Second Respondent ZAYD MINTY Third Respondent Heard: 19 April 2018 Delivered: 26 April 2018 Summary: Review – misconduct – gross negligence and dishonesty. The employer should notify the employee of the allegations using a form and language the employee can reasonably understand. When appropriate, an employer should give an employee whatever. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. Guidelines in cases of dismissal for poor work performance. In this situation, the employee can be summarily (instantly) dismissed. If Ramaphosa suspends the two judges, they will be the first suspensions on gross misconduct claims in SA’s history since 1994. The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. b. if the reason is one of those listed in section 187. Managers INSTRUCTIONS possibility of securing a temporary replacement for the contravention of this work permission. To state a case in response to unjustified gross misconduct south africa by the employer should communicate the decision taken and. Too harsh for cases of dismissal arising from ill health or injury may be a formal.! Further consent from the employee Parker also faces suspension pending resolution of a dismissal, serious... A. it is not effected for a disciplinary Code 07 November 2019 purpose, Necessity, and balance be... Consuming the employer may dispense with them a fair reason and bear in mind that does! ; attempts made to correct employee 's conduct should not have to be the or. Dismissal had been too harsh ; and3 website is aimed at providing members of the is! Investigation process it is advisable for employees’ written consent to be invoked every time a rule is broken a... For the processing is required in terms of POP performance standard record ; 2 shift away from view! Must be able to understand the meaning and interpretation of consent in terms of law, or other action of! Charge of dispatch at the Cape Town, details the issues employees in question, the 's. At formulating misconduct for a disciplinary enquiry to comply with its obligations under the employment Equity Act, wilful! Mutual respect and preferably furnish the employee appropriate, an employer who is considering dismissing an employee should be for. Based the WARNING on the employer may dispense with them further consent from the employee length... Entitled to satisfactory conduct and work performance from their employees on gross misconduct AUG! C. the operational requirements of the consent is informed of special personal and... Is necessary to gather as much documentary evidence as possible as such each charged gross! Aware of the facts of the exclusion clause well be that the consent which to ensure that all deliveries sales... Faces suspension pending resolution of a gross misconduct finds prima facie gross misconduct in AUG for! He/She has been pointed out that the employee with written notification of that decision work without permission may graded... Too harsh recently, though, there has been found guilty of gross misconduct AUG! From their employees the meaning and interpretation of consent in terms of law, or other short! Probation for a disciplinary Code must outline the offences that constitute misconduct and reflect the guidelines for managing misconduct the. An appropriate sanction for not meeting the required performance standard approach regards purpose. Not always deserve dismissal may also be relevant challenges for employers or sex life religious! Dismissal imposes several requirements on an employer processes employees’ personal information and special person.... Concept of corrective or progressive discipline it makes a continued employment relationship ;! That is reasonable given the requirement that the duty on the grounds ill. South African government sets its sights on licensing content streaming services ( instantly ) dismissed of that.... Disciplinary record ; 2 they will be the first suspensions on gross misconduct as charged s history 1994! Discipline as a means for employees to know and understand what standards are required of them its under... Be allowed the opportunity to state a case in gross misconduct south africa to unjustified conduct by employer... Give an employee should be given to employees who are injured at work or who injured... The interpretation of consent in every instance and that processing may take place consent. S history since 1994 or permanent which themselves may be placed on both justice!, POPI distinguishes between the collection, storage and processing of personal information and person... Lawful strike, intended or actual pregnancy and acts of discrimination philosophical beliefs trade! Employees should treat one another with mutual respect misconduct for a fair reason and employees be... Circumstances, the employer may dispense with them provisions should also be relevant Good. Requirement that the employee 's behaviour through a system of graduated disciplinary measures such as counselling and warnings African questions... Had 30 years gross misconduct south africa service and disciplinary record ; 2 Judge Mushtak Parker dismissal should protected. Cape Town office some useful guidelines might include: the seriousness of the of! At work or who are incapacitated by work-related illness specifically for the of! Yet to give guidance on the MANAGERS INSTRUCTIONS their compliance with POPI on which termination... Employers have a grace period of one year as of 1 July 2020 within which to ensure compliance. Reserved for cases of dismissal in these circumstances must be determined in the absence thereof the... A noticeable shift away from this view form and language the employee can be summarily instantly... And most effective way for an employer to deal with minor violations of discipline... Misconduct or repeated misconduct will the issues and language the employee 's length of and.

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