5. The degree of incapacity is relevant to the fairness of any dismissal. Offensive behaviour. c. the operational requirements of the employer's business. an employeeâs race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. 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. 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. the seriousness of the contravention of this Act; attempts made to comply with this Act; and. 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. 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 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. POPI distinguishes between the collection, storage and processing of personal information and special person information. 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. If Ramaphosa suspends the two judges, they will be the first suspensions for gross misconduct in SA’s history since 1994. The employees must be able to understand in clear language what they are consenting and the extent of the consent. The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. In the circumstances it is advisable for employeesâ written consent to be secured. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. An employer can process general personal information without an employeeâs consent where such processing either protects a legitimate interest of the employee, or is ânecessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is suppliedâ. This means that the employee's conduct should not have to be monitored.Â. What is Gross Negligence? While employers may hope for a âquick fixâ to ensure compliance and trust that including a broad, âcatch allâ consent in employeesâ contracts of employment will be suffice â this may not prove to be adequate in every instance. 2020 has given rise to many challenges for employers. 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. 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. 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. However, it will be for the employer in its capacity as responsible party to show that it has secured an employeeâs consent where it is relying on consent. There is often debate during negotiations for joint venture and services agreements about the scope of the exclusion clause. Misconduct is considered to be the unacceptable or improper behaviour of an employee. Securing an employeeâs consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees. All Rights Reserved. Second Respondent ZAYD MINTY Third Respondent Heard: 19 April 2018 Delivered: 26 April 2018 Summary: Review – misconduct – gross negligence and dishonesty. 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. While the term âlegitimate interestâ is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. 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 misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and3. 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. Introduction  The applicant, ABSA, dismissed the third respondent, Ms Miranda Ngwenya, for gross negligence arising from an incident on 17 August 2012. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others,25 this Court held: The employer should first consider factors such as the employee's length of service and disciplinary record; 2. All Rights Reserved. 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. Section 1 of POPI defines consent as âany voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal informationâ. 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. 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 … If Ramaphosa suspends the … 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. More recently, though, there has been a noticeable shift away from this view. Securing an employeeâs 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. South Africa: Specific Forms Of Misconduct In The Workplace And The Necessity For A Disciplinary Code 07 November 2019 . 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. 2121 Pennsylvania Avenue, N.W., Washington, D.C. 20433, www.ifc.org. This could involve: Harassment; Bullying; Fighting; Aggressive or intimidating … The employer should first consider factors such as the employee's length of service and disciplinary record; 2. Guidelines in cases of dismissal arising from ill health or injury. 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. 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.Â Both the Commission for Conciliation, Mediation and Arbitration and the Labour Court ruled that the dismissal had been unfair. 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. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and. The Labour Court of South Africa recently provided some useful guidelines. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. 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. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. 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. 6. 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. Western Cape high court judge Mushtak Parker also faces suspension pending resolution of a gross misconduct investigation. 3. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. South Africa Law. OVERVIEW: DISMISSAL FOR MISCONDUCT 2. after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily. 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. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. What Constitutes Gross Misconduct in The Workplace – Infographic May 22, 2019 April 3, 2019 by Tom Street There are certain actions or behaviors that are totally unacceptable in a workplace which will result in an immediate sack without any prior notice or warning. Copyright © 2020. 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 employee should be allowed the opportunity to state a case in response to the allegations. 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. The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. However, like any other act of misconduct, it does not always deserve dismissal. 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. 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 … Dishonesty has traditionally been seen as an offence serious enough to warrant dismissal as it could render an employment relationship intolerable. Parker faces impeachment on two grounds. Labour Guide. 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 -. 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 BASED THE WARNING ON THE MANAGERS INSTRUCTIONS. Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law. 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 Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Both special and general personal information may be processed lawfully if the processing is necessary for the âestablishment, exercise or defence of a right or obligation in lawâ. 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 material in this work is copyrighted. In this situation, the employee can be summarily (instantly) dismissed. 4. It has been pointed out that the code of good practice recommends dismissal for "gross" dishonesty and not all dishonesty. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. 2.This Act emphasises the primacy of collective agreements. 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. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. 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. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. Incapacity on the grounds of ill health or injury may be temporary or permanent. During an investigation process it is necessary to gather as much documentary evidence as possible. STEENKAMP J . Misconduct can become a serious problem if it is not managed properly and fairly. 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. The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. an employer processes employeesâ personal information to comply with its obligations under the Employment Equity Act. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. 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 employeeâs contract of employment alternatively, by one of the other basis for lawful processing. 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. 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. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. The same employer was involved and the employee was also dismissed for consuming the employer's food without paying for it. Where necessary provisions should also be made specifically for the processing of special personal information. They were as such each charged with gross dishonesty and dismissed. THE DISCIPLINARY HEARING 3.1 Preparation for disciplinary hearing 3.2 Conducting the disciplianry hearing 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. Disciplinary procedures prior to dismissal. The Act recognises three grounds on which a termination of employment might be legitimate. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employeeâs employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 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. Dismissal should be reserved for cases of serious misconduct or repeated offences. Copyright © 2020. 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. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 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 and consent - donât get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. It first asks, âIs there a legitimate reason or purpose for the processions?â, secondly âIs processing the information necessary for that purposeâ and thirdly âIs the legitimate interest overridden by the interests of the data subject?â. He had to ensure that all deliveries for sales orders are … 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. Whether or not the procedure is fair is determined by referring to the guidelines set out below. 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. 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. The Labour Appeal Court therefore agreed with the CCMA that the dismissal had been too harsh. A At the time of his dismissal, the employee was in charge of dispatch at the Cape Town office. a. it is not effected for a fair reason and. Judicial Conduct Committee finds prima facie gross misconduct by Judge Mushtak Parker. This would cover instances where e.g. 3. 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. 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. dismissal was an appropriate sanction for not meeting the required performance standard. The South African government sets its sights on licensing content streaming services. I AM AN HR ASSISTANT AND I WAS DISMISSED FOR GROSS MISCONDUCT IN AUG 2013 FOR ISSUING A WARNING INCORRECTLY. Should liability include or be limited to "gross negligence", "wilful misconduct", or both? 2.The courts have endorsed the concept of corrective or progressive discipline. 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. 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. 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. 2. 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”. If Ramaphosa suspends the two judges, they will be the first suspensions on gross misconduct claims in SA’s history since 1994. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. ... and the role of media to tell and record the story of South Africa … What is misconduct? To bring this proof to the CCMA and convince the arbitrator that the employee's conduct had not merely damaged the working relationship but had, in fact, destroyed it. 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. Not all misconduct will justify the sanction of a dismissal, only serious misconduct will. In the circumstances clauses relating to the processing of personal information in employeesâ contracts of employment which are aimed at securing employeesâ 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. 1. 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 THERE WAS ALSO SOME HEAR SAY EVIDENCE THAT WAS … 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. However, I would like to suggest that, in the context of labour law, the employee's duty of trustworthiness means that the employer has the right to expect the employee to behave honestly at all times. The GDPR has established a three-pronged test in interpreting âlegitimate interestâ which considers purpose, necessity, and balance. An offence serious enough to warrant dismissal as it could render an employment relationship intolerable is determined by referring the... Warrant warnings awnings, which themselves may be placed on both employment justice and the role of media tell! 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