A really messy disciplinary process The decision of the Labour Appeal Court in Zono v Gruss NO & others (2011) 20 LAC 1.25.4is again a lesson in how disciplinary proceedings can go wrong – and badly so. This decision also shows how a series of unfortunate incidents and words written in haste and in the heat of the moment can have significant repercussions for both an employee and an employer. What happened The employee was stationed at Sada, near Queenstown. This was not his home town, but he was stationed at Sada as a result of the employer’s belated attempts to give effect to an earlier arbitration award in which the employer had been ordered to promote the employee. The employee was scheduled to attend a course in Krugersdorp from 11 to 15 April 2005. Not wanting to make the trip alone, he decided to travel to the course venue with a colleague. But the colleague said, at the last moment, that he was not going to attend the course. The employee then needed to arrange transport, so he arranged for an official vehicle to be driven to Port Elizabeth (his home) from Sada – he would drive to Krugersdrop with this vehicle. The vehicle was duly delivered, the employee duly drove to Krugersdorp and duly attended the course as he was supposed to. It was when coming back that things went wrong. The employee delivered the vehicle back to the State garage in Port Elizabeth, but then fell ill. He claims that he sent his superior an sms message that he was too ill to report for duty. The superior then called the employee and told him to report for work because an audit was to be conducted and the employee’s attendance was required. The employee responded that he was ill. But he failed to send a medical certificate to his employer immediately. The employee’s superior at Sada also instructed the employee to return the vehicle immediately. The said that he could not do so, because the vehicle was not at his home – it had been delivered to the State garage. Eventually, the employee faxed a medical certificate to the superior and made some remarks on the cover sheet of the fax. The employee was charged with four offences. The first was that he had misused the vehicle – that he had travelled from Sada to Krugersdorp via Port Elizaneth without authorisation. The second charge was that he had been grossly insubordinate when he failed to comply with an instruction to return the vehicle immediately after his return. He was also charged with being absent without leave – this was because the employee failed to report to duty when instructed to do so. The final charge was that he had addressed “indecent and derogatory” remarks to his superior. A disciplinary enquiry was duly held and the employee was found guilty on all of these charges. Time passes One of the arguments raised by the employee was that the employer had lost the right to discipline him because of the passage of time. The Departmental disciplinary code and procedure provided that a formal disciplinary enquiry should be finalised within 30 days from the date on which the investigation is finalised. The code provided that if this time limit could not be complied with, the parties should be informed of the reasons for the delay. Finally, the disciplinary procedure also said that if the employer, without good reason, fails to institute disciplinary proceedings within a period of three months after the completion of the investigation, the disciplinary action “falls away”. The arbitrator had concluded that the code and procedure was a guideline only. It was argued before the Labour Appeal Court that this was not the case – that the disciplinary code and procedure was a collective agreement that was binding on the employer. The Labour Appeal Court found that it was not necessary to resolve this issue. It was clear from the facts that the disciplinary enquiry was instituted within the time period set out in the disciplinary procedure. One of the investigations, for instance, ended on 31 August 2005. The employee was advised of the charges on 8 November 2005 and the disciplinary enquiry was scheduled for 22 November 2005. On this date the enquiry was suspended because a neutral chairperson could not be found and because the employee raised a number of procedural points. The employee was informed of the reason for the postponement – and some of the subsequent postponements were made at the request of the employee himself. The disciplinary enquiry ran all the way to June 2006 – when the employee was dismissed. The Labour Appeal Court confirmed the arbitrator’s findings: the disciplinary hearing was scheduled timeously and the process, even though it was characterised by delays and one postponement after the other, was finalised as quickly as it could be. At no point in time did the employer give the impression that it would not discipline the employee. The merit of the charges As regards the charge of misuse of a vehicle, the Labour Appeal Court pointed out that the charge did not relate to the misuse of a vehicle in any ordinary sense. After all, the employee needed a vehicle for an official purpose, he was allocated a vehicle and used it to attend a course in Krugersdorp. The essence of the charge appears to have been that the use of the vehicle was not approved by the employee’s superior. There was no merit in this charge, the Court found: even though the employee’s superior did indeed not approve the use of the vehicle, other officials did. At worst, the employee may have failed to follow the correct procedure, but he could not be blamed if his superior was not available. The second charge (insubordination) did not prove to be much sounder. The employee was telephonically instructed, again by his superior, to return the vehicle. The employee agreed to bring the vehicle back the same day, but failed to do so – he said that he was ill on that day. For the employer it was argued that because the employee made no arrangements to have the vehicle returned to Sada, he was guilty as charged. There was no dispute about the employee’s being ill and that there was a medical certificate that covered the day in question. The employee was indeed booked off ill by a medical practitioner. Once again, the Labour Appeal Court found that there was no merit in the charge. The employee could perhaps have been more cooperative – but even so it cannot be said that he was obliged to arrange for the return of the vehicle. He was, after all, off duty on sick leave. The third charge was that the employee was absent without leave and once again the charge held no water. It was clear that the employee did, eventually, submit a medical certificate covering the period in question. It could not be said that the employee stayed away for longer than the leave granted – because no leave had ever been granted. If the Department had wanted to discipline the employee because he could not prove that he was ill, he should have been charged accordingly. The rules of the Department do not require ill employees to submit medical certificates immediately – nor could the employee have done so, given that he did not have a fax machine at home. This left only one charge: that the employee made derogatory remarks on the fax cover sheet. For the employer it was argued that the remarks, which focused on the qualification of the medical practitioner and some other exclamations, were indecent and derogatory remarks to be made to a senior official (the employee’s superior). The arbitrator had found that the employee was indeed guilty on this charge – and pointed out that the employee had not apologised for making the remarks (even though he had ample opportunity to do so). One question the Labour Appeal Court dealt with was how these remarks fitted into the employer’s disciplinary code and procedure. Were they “indecent gestures and/or signs made to any other person”? It was clear that the employee had communicated with his superior in a derogatory and belittling manner – but then the applicable charge would have been the “use of improper language to any other person”. The Court found that the most appropriate charge would even have been making “humiliating accusations directed at any other persons”. The Labour Court had agreed with the arbitrator and his conclusion that these remarks were made to challenge the superior’s authority. But the Labour Appeal Court disagreed: the remarks were aimed at belittling the superior, but were not intended to undermine him and the Departmental hierarchy. This offence also fell into the category B list of offences – indicating that the employer did not believe that this was a dismissable charge. The arbitrator was wrong by failing to analyse the nature of the offence – and by attaching more weight to the charge than it warranted. The charge related, in essence, to an interpersonal communication between a superior and a subordinate – but this communication was outside the public view. It did count as aggravating factors that the employee persisted in saying that his remarks were justified and that he still refused to apologise. Even so, this offence did not justify the dismissal of the employee – even though the offence should still be sanctioned in one way or another. Reinstatement, but … The Labour Appeal Court reviewed and set aside the arbitrator’s award and upheld the appeal. The Labour Appeal Court ordered the employer to reinstate the employee. But this left the issue of the “obnoxious” remarks the employee had made to his superior. So the Labour Appeal Court reinstated him as from the date the award was handed down (and not to the date on which he was dismissed). This, the Court said, should bring home to the employee the fact that there will be consequences when he belittles his superior. Again, this decision of the Labour Appeal Court makes a number of important points. The first is that disciplinary charges should be formulated and framed appropriately – in this case it would mean that the correct charge should be taken from the disciplinary code and procedure. The question is which charge, in the code and procedure, is the charge that most closely fits the alleged offence. The second point is that disciplinary charges and the facts that underlie them need to be considered carefully, and an employer should also ensure that it has the facts to back up those charges. It is clear from the Labour Appeal Court’s decision that only one of the four disciplinary charges against the employee had any merit whatsoever. It underscores the need for employers to take considerable care in evaluating the facts of a case, to make sure that the facts support a charge, and that those facts can be proven. Putting a charge that has no merit to an employee is simply looking for trouble. And this case is an illustration of just how much trouble can be caused if the charges and the facts are not thoroughly thought through. Carl Mischke November 2011
-- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
