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Substantive Fairness in Dismissal - Incapacity & Poor Performance

Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance

By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com

ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly.

SUMMARY OF EVIDENCE: The employee was employed as a DTP operator for the Company in April 2002. She received a written warning for poor performance in July which was valid for 12 months. She contested the validity of this warning as she had understood that the parties had agreed to ‘let bygones be bygones". The employee was handed a notice of disciplinary hearing for gross negligence in performance.

There were 3 charges. At the hearing the employee requested postponement because she had not had enough time to prepare. The chairperson considered that the more than 8 days she had had was adequate. The employee claimed that she had not been given enough particulars for preparation, but the chairperson refused postponement and she left the proceedings. Before she left the chairperson warned her that he would continue in her absence.

She left and he continued in her absence. He reviewed the 3 jobs on which there were errors and considered that there were adequate grounds to find that the employee was negligent and therefore to terminate services and he recommended summary dismissal. The appeal was not successful. The employee considered that she had been victimized and that she was subjected to racist treatment.

SUMMARY OF JUDGMENT: Although the employee was justifiably concerned that she was unable to prepare herself properly because the nature of the evidence was technical and specific, she was not entitled to demand all the evidence before the hearing and then to walk out when she did not get it.

It appears from the undisputed record of the enquiry and the chairperson’s oral evidence that he did explain to her that if she were prejudiced he would postpone the matter. The employee did not challenge the chairperson on this evidence of his conduct of the hearing, nor did she put to him her allegation that he had prejudged the matter.

The commissioner said that she did not consider that the employee had made out a case that the chairperson did not consider the material properly and that he did not exercise an independent judgment although the commissioner agreed that his reasons were somewhat skimpy, however this did not make the hearing unfair.

If an employer allows an appeal, a neutral person must consider it. In this case the person hearing the appeal was the employee’s supervisor; (b) he was the complainant in the enquiry into her performance and (c) he was the chief witness. He could not possibly have been independent or neutral on hearing the appeal. The Commissioner found the appeal was unfair.

The incident which led to a final written warning showed that the employee may have resisted instruction from her supervisor and felt more comfortable getting colleagues to help. It was common cause that after the July hearing, management went easy on her. Their agreement to "start over" was a metaphor for an agreement to be more positive and not a negation of the history that was already "on the record". The chairperson of the December enquiry was entitled, on the basis of the evidence before him, to take the July warning into consideration.

In a business where there are family members management needs to be scrupulous in avoiding actual nepotism or giving the impression that family and "friends" are being treated more favorably than others. It would have been fairer to apply similar standards of conduct to one class of employee as to the other unless there are sound operational reasons why this ought not to be.

On the question of the privacy of disciplinary measures the company ought to inform employees of its approach to standards of conduct and performance even if this is only in a general way so that the staff knows what they are up against. The employee had not realised how strict the standards would be and there is at least the suspicion that if she had not been so aggressive and resentful of authority the company might well not have held a formal enquiry back in July.

The commissioner found, after listening to the evidence on the actual jobs on which the company complained, that the company had discharged the onus of proving on a balance of probabilities that the employee’s work performance was below expected standards, however she found that negligence is only gross if it borders on the reckless. Here the customer had already signed off on the project so there did not appear to be a reckless neglect amounting to gross negligence. The facts were not in dispute on the third charge, and the employee said it was the first time she had done an assignment of that kind, she should have checked up the line to her supervisor. The commissioner found that her work amounted to poor performance but not gross negligence.

It was common cause that there were some performance problems but instead of conceding these and making efforts to improve and align her work performance to the company’s expectations the employee was suspicious and accused the employer of bad faith. She tendered no convincing factual basis for her claim that her employer was racist, or that there was a conspiracy to get rid of her.

The chairperson’s uncontested evidence suggests that the employee was unhelpful and argumentative at the hearing. She resented criticism and dubbed it as interference The commissioner considered that the company had adequate grounds to terminate services for poor performance exacerbated by a breakdown in the employment relationship.

She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. However, although the employer had had sufficient valid cause to terminate the contract the commissioner said that he did not consider summary dismissal justified. At common law an employer may terminate on reasonable notice unless the employee has committed a major breach of contract. The Commissioner decided that the company ought to have terminated the contract on reasonable notice and that in the circumstances, given the likelihood that the employee would not be able to find alternative employment in the week before Christmas; it should have paid her until the end of January. This was so awarded.


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Gary Watkins

Gary Watkins

Managing Director


C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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