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ATTORNEYS

EMPLOYMENT LAW UPDATE: AUGUST/SEPTEMBER 2005

CONSTRUCTIVE DISMISSAL The applicant in Kannemeyer / Workforce Group (2005) 8 BALR 824 (CCMA) resigned because she thought she was being victimized after lodging a complaint about the respondents unilateral decision to reduce her commission rate. She claimed she had been constructively dismissed. The respondent claimed that the applicant had resigned because disciplinary proceedings had been instituted against her for poor work performance. The commissioner found that the applicant had good reason to be aggrieved over the reduction of her commission rate, and that nothing had come of her grievance before disciplinary proceedings had been launched against her. She had then been kept waiting for the outcome of the disciplinary action for nearly two weeks before she decided to resign. Under these circumstances, her feelings that she was being victimized were understandable. Although the applicant could have lodged a further grievance, it was also understandable that by then she had lost al faith in the company grievance procedure. The commissioner found that the applicant had been constructively dismissed. She was awarded compensation. EVIDENCE The applicant in MEWUSA obo Mbonambi / S Bruce CC t/a Multi Media Signs (2005) 8 BALR 809 (MEIBC) was the only one of the respondents employees to fail a polygraph test when they were questioned about the theft of money from the respondents premises. The arbitrator held that, while an employee cannot be convicted on the strength of the results of a polygraph test alone, there was sufficient additional circumstantial evidence to justify admission and acceptance of the test results. The employee was correctly convicted of the theft. The admissibility of polygraph tests was considered in Mzimela / United National Breweries SA (Pty) Ltd (2005) 9 BALR 969 (CCMA) and NUMSA obo Mkhonza & Others / Assmang Chrome Machadodorp Works (2005) 9 BALR 930 (MEIBC). In both cased, the arbitrators held that the results of such tests are admissible when the tests were conducted by qualified people who testified, and if the results were corroborated by independent evidence SEXUAL HARASSMENT The applicant in Rautenbach / Relyant Retail (Pty) Ltd (2005) 8 BALR 890 (CCMA) was dismissed after he told male colleagues in a bar that he had had sexual intercourse with a female colleague who was recovering from a drinking bout in a room in the hotel. The arbitrator noted that the Code of Good Practice on Sexual Harassment provides that verbal comments must be uttered in the presence of the complainant if they are to constitute misconduct of sufficient gravity to warrant dismissal.

DISMISSAL FOR MISCONDUCT The applicant in Mzimela / United National Breweries SA (Pty) Ltd (2005) 9 BALR 969 (CCMA) was dismissed after a bag of cash disappeared from the depot he controlled. The commissioner rejected the applicants claim that he did not count the bags when he took them from a driver and deposited the in a drop safe; even if the applicant had not personally stolen the money, he was at least grossly negligent by flouting rules of which he was fully aware. The dismissal was justified.

The applicant in MOSSAWU obo Khoza / Mr Price Weekend Material (2005) 9 BALR 961 (CCMA) failed to inform management of the identity of a colleague who had stolen a customers cell phone. The commissioner held that, although the applicant had identified the thief after the police arrived, he might have done so only to avoid being implicated. The applicants conduct had breached the trust relationship between himself and his employer. The dismissal was appropriate The applicants in NUM obo Snyders & others / Sonop Delwery (2005) 8 BALR 858 (CCMA) were dismissed for striking in protest over the respondents decision to deduct money from the wages of some employees who had declined to work during an Easter weekend. They denied they were on strike at the time, and claimed that the work stoppage had been provoked by the employers unlawful conduct. The commissioner held that the work stoppage constituted a strike, which was unprotected. The employees had done nothing to comply with the LRA, and they could have had their grievance resolved by arbitrator. Furthermore, they had refused to send representatives when management had invited them to discuss the problem. The respondent had also issued two clear ultimatums. The dismissal was accordingly substantively and procedurally fair. DISMISSAL FOR OPERATIONAL REQUIREMENTS The applicant in Saunders / Burns Rivers & Co (Pty) Ltd t/a Webco (2005) 9 BALR 984 (CCMA), then the respondents sales manager, was given a new job description as part of the respondents attempts to boost sales. She claimed that the new post constituted a demotion, and refused to accept it. After several meetings, the respondent initiated retrenchment consultations and when the applicant refused again to accept the new post, retrenched her. The commissioner held that the respondent had pressing reasons to restructure, that the restructuring inevitably affected the applicants duties, and that she had unreasonably refused the new post. Furthermore, the respondent had done all it could to persuade her to accept the position before retrenching her. The dismissal was accordingly procedurally and substantively fair. __________________________________ Disclaimer: The information presented in this newsletter is not intended to be legal advice. Readers are advised to obtain advice from their legal advisors if they intend to use any information published in this newsletter. Van Zyls Inc and any of its staff or associates will not be held responsible for any loss suffered by any person as a result of information published in this newsletter.