versão On-line ISSN 2225-7160
versão impressa ISSN 1466-3597
De Jure (Pretoria) vol.44 no.1 Pretoria 2011
Hoe word 'n billike sanksie bepaal? ontslag as gepaste sanksie in gevalle van ontslag weens (wan)gedrag
BLC LLB LLD Professor of Law, University of Johannesburg and Co-Director of CICLASS
Elke werknemer in Suid Afrika het die reg om nie onbillik ontslaan te word nie. Die Wet op Arbeidsverhoudinge 66 van 1995 bepaal dat 'n werkgewer 'n werknemer billik mag ontslaan op grond van gedrag, vermoë op bedryfsvereistes. Die werkgewer moet egter ook 'n billike prosedure voor ontslag volg. Die Kode van Goeie Praktyk: Onbillike Ontslag (bylae 8 by die Wet) bepaal dat die vraag of 'n rede vir ontslag billik is of nie, word deur die feite van elke saak asook die gepastheid van ontslag as sanksie beantwoord (in besonder item 7(b)(iv)). Dit is egter nie maklik om te bepaal of ontslag die gepaste sanksie in 'n bepaalde geval is nie. Hierdie bydrae oorweeg hierdie vraag sonder om na prosedurele billikheid te verwys. In die saak van Edcon Ltd v Pillemer NO (Reddy) is beklemtoon dat 'n werkgewer getuienis moet voorlê om die bewering dat ontslag in werklikheid die gepaste sanksie was, te ondersteun. Sodanige getuienis kan insluit dat die vertrouensverhouding onherstelbare skade gely het. Die werkgewer moet dus kan aandui dat die werknemer skuldig is aan wangedrag en dat die aard sowel as die impak of uitwerking daarvan sodanig is dat ontslag die gepaste sanksie is. Die bydrae ondersoek 'n aantal sake in die lig van hierdie oorweging, naamlik: (i) die bewyslas in ontslaggeskille; (ii) wanneer ontslag 'n gepaste sanksie kan wees; (iii) die finale besluitnemer rakende of ontslag billik was of nie (maw was dit in die bepaaalde geval wel die gepaste sanksie); en (iv) hoe moet 'n werkgewer die besluit om ontslag as sanksie te gebruik of nie benader. Hierdie vrae word telkens bespreek met verwysing na beginsels wat reeds in regspraak gevestig is.
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1 Another version of this contribution was presented at the 23 rd Annual Labour Law Conference Justice on the Job held from 2011-08-11 at the Sandton Convention Centre.
1 S 185 of the Labour Relations Act 66 of 1995 (LRA).
2 See s 186 LRA.
3 These dismissals are listed in s 187 LRA.
4 See again s 192 LRA "Onus in dismissal disputes".
5 The fair reasons for dismissal recognised by s 188 LRA originate in Art 4 of the InternationalLabour Organization (ILO) Convention on the Termination of Employment 158 of 1982.
6 Sch 8 LRA.
7 Idem item 7(b)(iv).
8 Grogan Dismissal, Discrimination and Unfair Labour Practices (2005) 226 states that the choice of the word "appropriate" reflects the difficulty that courts have experienced in deciding whether dismissal or some lesser sanction should be imposed for a case of proven misconduct.
9 The decision in Avril Elizabeth! Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration 2006 27 ILJ 1644 (LC) had far-reaching consequences for managing discipline in the workplace as it stressed the need for more informal discipline (unless otherwise stipulated in companies' disciplinary codes).
10  1 BLLR 1; 2009 30 ILJ2642 (SCA).
11  1 BLLR 1 (SCA).
12 Idem par 5.
13 Idem paras 8 and 17.
14  12 BLLR 1097 (CC). In the internal disciplinary hearing Mr Sidumo was charged as follows: "Negligence - Failure to follow established procedures in terms of the Protection Services Department search procedure which caused prejudice or possible prejudice to the Company in terms of production loss and Failure to follow established procedures in terms of the Protection Services Department search procedures."
16 S 192(1) LRA.
17 S 192(2) LRA.
18 In the context of automatically unfair dismissal the following has been raised - in Janda v First National Bank  12 BLLR 1156 (LC) Van Zyl AJ held: "This essential point is obscured if one speaks of 'the employee must prove' or a 'shifting' of the onus or a duty 'to establish a prima facie case that the reason for the dismissal was an automatically unfair one'. The evidentiary burden placed upon an employee creates the need for there to be sufficient evidence to cast doubt on the reason for the dismissal put forward by the employer or, to put it differently, to show that there is a more likely reason than that of the employer ... The essential question however remains, after the court has heard all the evidence, whether the employer upon whom the onus rests of proving the issue, has discharged it". Furthermore, in Kroukam v SA Airlink (Pty) Ltd 2005 12 BLLR 1172 (LAC) (par 28): "In my view, section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal."
19 Stellenbosch Farmers ' Winery Group Ltd and Another v Martell et Cie 2003 1 SA 11 (SCA) par 5; Zeffertt and Paizes The South African Law of Evidence (2009) 151 et seq.
20 Schwikkard et al Principles of Evidence (2009) 571 with reference to Pillay v Krishna 1946 AD 946 952-3.
21 Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA).
22 Zeffertt and Paizes (2009) 46: "The law of evidence is well known for its power both to fascinate and to perplex. Even in this arcane field, however, the onus of proof stands out for its extraordinary ability to tantalise the legal mind. Few subjects that are so important a part of the practical workings of a legal system can, at the same time, remain so mysterious, enigmatic and elusive to the questioning mind. It is a concept that seems to recede the harder it is pursued and that resists any effort to define or contain it. It is as if, sometimes, one is chasing shadows and as if any attempt at coming to grips with the subject can never yield anything of substance."
23 Le Roux "Proving the fairness of the dismissal: The need to present evidence" 2010 Contemporary Labour Law 57 59. [ Links ]
24 Law of Evidence Issue 7 (2009) 2-3.
25 Sidumo v Rustenburg Platinum Mines Ltd (2007) 12 BLLR 1097 (CC).
26 Idempar 66.
27 Idempar 75.
29 In the Sidumo case (supra) the commissioner considered Mr Sidumo's service record in his favour. He concluded that dismissal was too harsh a sanction and motivated it as follows: There had been no losses suffered by the Mine; the violation had been unintentional or had been a "mistake"; and Mr Sidumo had not been dishonest. Before making his award the Commissioner stated that he did not consider the offence committed by Mr Sidumo to "go into the heart of the relationship [with the employer], which is trust."
30 NEHAWU v University of Cape Town & others (2003) 24 ILJ95 (CC) par 38-39. See also par 3 below.
31 2003 24 ILJ 2269 (LAC) 2278H-2279A. See also NUMSA v Vetsak Cooperative Ltd 1996 4 SA 577 (A) 589C-D: "Fairness comprehends that regard must be had not only to the position and interests of the worker, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances."
32  6 BLLR 681 (LC).
33 Idem par 20.
34 Unreported labour court judgment JR 3347/2005 par 16 - as referred to by Myburgh "Sidumo v Rustplats: How have the courts dealt with it?" 2009 ILJ 1 13.
35  9 BLLR 896 (LC).
36 Idempar 18-19.
37 Idempar 22.
38 2006 27 ILJ395 (LC) par 43.
39 45 of 1988 (ie in the interests of justice etc).
40 Myburgh 2009 ILJ 1 13.
41 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA 2006 27 ILJ 2076 (SCA).
42 Sidumo v Rustenburg Platinum Mines Ltd 2007 28 ILJ 2405 (CC). See also Le Roux and Mischke "The disciplinary sanction: when is dismissal appropriate?" 2006 Contemporary Labour Law 91 and Le Roux and Young "The role of reasonableness in dismissal: the constitutional court looks at who has the final say" 2007 Contemporary Labour Law 21.
43 Idem Par 72.
44 Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC).
45 Idem Par 61.
46 See in this regard Grogan "Two-edged sword" Sibergramme 5/2008: "Cheetham's case confirms, then, that after Sidumo the scope for review of commissioners' decision on proven misconduct has been reduced to virtually zero - except, perhaps, in cases where ... the sanction imposed by a commissioner is so aberrant that no reasonable commissioner could possibly have agreed that it was appropriate."
47 1999 20 ILJ 1701 (LAC). Refer to the Sidumo case supra par 18: "An arbitration under the auspices of the CCMA is a hearing de novo".
49 Idem par 11.
50 Idem par 78.
51 Idem par 79.
52 In Samson v Commission for Conciliation, Mediation and Arbitration 2010 31 ILJ 170 (LC) the applicant employee was charged with distributing pornography on the third respondent employer's intranet. He pleaded guilty, expressed remorse and apologised to the co-employee to whom he had accidentally sent the e-mail containing the pornographic material. The chairperson of the disciplinary enquiry found the employee guilty and imposed a final written warning valid for three years. The employer's executive vice president set aside the original sanction and imposed a sanction of dismissal. The employee appealed raising the defence of "double jeopardy". The sanction of dismissal was upheld on appeal. The employee then referred a dispute to the CCMA. At the commencement of the arbitration hearing the commissioner granted the employer the right to be represented by its attorney although the employee opposed the application. The commissioner having heard evidence and argument found that the employee's dismissal had been substantively and procedurally fair. On review the court noted that it would only review and set aside the commissioner's award if it failed to meet the threshold established by the Sidumo judgment supra, namely whether the commissioner's decision was one to which no reasonable decision maker could come. The court was not willing to come to such a finding in this case.
53 2008 29 ILJ 964 (LAC).
54 Idem par 100.
55 Smit "When is a dismissal an appropriate sanction and when should a court set aside an arbitration award? Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) /  12 BLLR 1097 (CC)" 2008 ILJ 1635.
56 Palaborwa Mining Co Ltd v Cheetham 2008 6 BLLR 553 (LAC) par 8.
57 Sch 8 LRA.
58 Item 2(1) Sch 8 LRA.
59 Item 3(2) Sch 8 LRA.
61 Item 3(3) Sch 8 LRA.
62 Item 3(4) Sch 8 LRA.
63 Item 3(5) Sch 8 LRA.
64 Sidumo v Rustenburg Platinum Mines Ltd  12 BLLR 1097 (CC).
66 Idem par 117.
67  6 BLLR 685 (AD) 691I.
68 Idem 691I.
69 1908 TS 761.
72 778. The court stated that one act would be sufficient, provided that it was clear and uneqivocal, but in the absence thereof that unfaithfulness might be established by the cumulative force of a succession of acts each insufficient when taken alone.
73 1991 12 ILJ 1032 (LAC).
75 Central News Agency v Commercial Catering and Allied Workers Union of SA 1991 12 ILJ 340 (LAC) 344G: "This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and the relationship between employer and employee".
76 1992 13 ILJ 573 (LAC).
79  6 BLLR 685 (AD) 6911.
81 Refer to 692C-E.
82  9 BLLR 1137 (LAC) 1139.
83  2 BLLR 108 (LAC); 1999 20 ILJ 578 (LAC).
84 Par 33.
85 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA  11 BLLR 1021 (SCA) par 29.
86 Sidumo v Rustenburg Platinum Mines Ltd  12 BLLR 1097 (CC).
87 2003 24 ILJ 890 (CCMA).
88 Idem 900.
89 Idem 900. If it is relationship problems an employer's response ought to be: "(a) to try to isolate the problems, (b) to identify their causes and (c) to find ways to remedy the problem. Only if no solutions are forthcoming, should the employer move to termination of the relationship".
90 Idem 904.
91 Idem 901.
92  9 BLLR 995 (LAC); 2000 21 ILJ 1051 (LAC).
93 See also par 17: "Of course, a commissioner is not bound to agree with an employer's assessment of the damage done to the relationship of trust between it and a delinquent employee, but in the case of a fraud, and particularly a serious fraud, only unusual circumstances would warrant a conclusion that it could be mended".
94  3 BLLR 243 (LAC).
95 On appeal, the appellant contended that the third respondent had committed a gross irregularity, had exceeded his powers and that his decision was not justifiable according to the reasons provided. The court held that the only ground upon which the award could be reviewed was under s 145 LRA which refers to gross irregularity in the proceedings. The contention that an award was not "justifiable according to the reasons given" did not provide a ground for review because it blurred the distinction between appeal and review.
96  JOL 12846 (LC). Mr Joseph Shoko after approximately five years of employment was found in unauthorised possession of a roll of rubber tape that was concealed under his jacket. A security guard who had conducted a body search of Shoko when he was leaving the applicant's premises at the end of his shift discovered the rubber tape under his jacket. Shoko was accordingly charged with theft of company property, alternatively attempted theft of company property and pleaded guilty at a disciplinary enquiry. After consideration of mitigating factors, the chairperson of the enquiry dismissed Shoko, who then lodged an internal appeal in terms of the disciplinary code, which was unsuccessful.
97  3 BLLR 342 (LC).
98 Idem par 16 and 26.
99 Idem par 30.
100 Sidumo v Rustenburg Platinum Mines Ltd  12 BLLR 1097 (CC).
101 Par 18.
102 2010 31 ILJ 901 (LAC).
103 De Beers Consolidated Mines Ltd v CCMA  9 BLLR 995 (LAC); 2000 21 ILJ 1051 (LAC).
104 The Mutual Construction Co Tvl case par 38.
105 Shoprite Checkers (Pty) Ltd v CCMA  12 BLLR 1211 (LAC).
106 Par 19 and Myburgh "Sidumo v Rustplats: How have the courts dealt with it?" 2009 30 ILJ 1.
107 Par 19.
108 2008 29 ILJ 2581 (LAC).
109 Shoprite Checkers (Pty) Ltd v CCMA  12 BLLR 1211 (LAC).
110 Par 24.
111  10 BLLR 1017 (LAC). See also par 20: "To my mind, a disciplinary procedure that draws subtle distinctions between degrees of theft, and likens the lesser or "technical" sort of theft to negligence, is impractical."
112 Sidumo v Rustenburg Platinum Mines Ltd 12 BLLR 1097 (CC).
113 The respondent who was employed on a fixed term contract as a support supervisor at the Vryburg branch was charged with and disciplined for a number of offences, including the failure to obey instructions in that the respondent was alleged to have failed to submit a compact disc with assignments in it and dishonesty in that the employee submitted a compact disc with the full knowledge that it did not contain any of the assignments. During the arbitration hearing it was testified that the manager could no longer trust the employee because of the incident involving (non)submission of his assignment.
114 Par 11.
115  12 BLLR 1097 (CC).
116  8 BLLR 830 (LAC). In a matter where an employee posed as an attorney representing the employer to obtain privileged information for a colleague from a firm of attorneys.
117 835: "Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer's organisation, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct. In these circumstances, where there is nothing more than an aggressive denial and a perpetuation of dishonesty, it is extremely difficult to justify a progressive sanction, particularly in a case where the dishonesty is as serious as this dispute."
118 2000 21 ILJ 1051 (LAC) par 22.
119 2010 31 ILJ 901 (LAC).
120 Par 37.
121 2000 21 ILJ 340 (LAC) 344C-F.
122 2010 31 ILJ 241 (CCMA).
123 SACCAWU v OK Bazaars Kimberley  7 BALR 887 (CCMA). In this matter the commissioner stated (895) that: "The real test is whether the trust relationship has been breached to the extent that the employment relationship has become intolerable. ... The question whether the trust relationship between employee and employer has in fact broken down in a particular case is a question of fact and not a question of law. One must scrutinise the evidence on record carefully ... ".
124 See also Gcwensha v CCMA  3 BLLR 234 (LAC) and SACCAWU v Irvin & Johnson Ltd 1999 20 ILJ 2302 (LAC).
125 Westonaria Local Municipality v SALGBC  3 BLLR 342 (LC).
126 2008 29 ILJ 1180 (LC) par 45.
127 DA 22/08. The employee posed as the employer's attorney in order to obtain information for a colleague from an actual attorney.
128 In the Sidumo case supra the Constitutional Court stated (par 117) that the fact that Mr Sidumo did not own up to this misconduct and his denial that he received training were factors that counted against him.
129 2010 31 ILJ 901 (LAC).
130 Par 37.
132 Par 36.
133 "The breakdown of trust: Operational perspectives on the appropriate sanction" 2010 Contemporary Labour Law 71 76.
134  1 BLLR 1; 2009 30 ILJ2642 (SCA).
135 I wish to thank A van Niekerk for commenting on an earlier draft of this contribution.