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updated 7:22 PM CDT, Jul 17, 2019
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Case Law & Legislation Review: Pregnant, or just incompetent?

Case Law & Legislation Review: Pregnant, or just incompetent?

By Gary Watkins

# SUBJECT: SUBSTANTIVE FAIRNESS IN DISMISSAL AUTOMATICALLY UNFAIR DISMISSALS

ISSUE: Determine whether or not the employee’s dismissal was automatically unfair – employee failed to demonstrate that the reason for her dismissal, whether fair or not, was her pregnancy or any reason related thereto – court has no jurisdiction if fairness of dismissal becomes an issue – claims dismissed.

SUMMARY OF FACTS: A pre-trial conference between the legal representatives of the parties was held. The minute of that conference records the employee's intention "to show that the termination of the employee's services constitutes unfair discrimination as provided for in terms of Section 6 of the Employment Equity Act and constitutes breach of her common law contract of employment", in addition to being without a sufficient reason or fair procedure. The company's intention, on the other hand, was precisely and narrowly stated in the minute. It argued, that this Court's jurisdiction "should be limited to the question whether, having regard to the reason for the termination of the employee's employment, such termination constitutes an automatically unfair dismissal." If it was found, as they inferred and subsequently vigorously argued, that that was not the case, that would be the end of the matter.

The court referred to the absence in this matter of any evidence of the consent criterion there referred to and in these circumstances the cardinal issue in the determination of the existence or otherwise of this Court's jurisdiction to entertain the dispute between the parties, is whether or not the employee was automatically unfairly dismissed as a consequence of her pregnancy, "or any reason related to her pregnancy". Counsel for the employee argued correctly that in terms of Section 192(2) of the Act, the company bears the onus to show that a fair reason exists that is unrelated to her pregnancy and that such a reason justified her dismissal.

The determination whether or not that onus had been discharged, was however, not a matter falling within this Court's jurisdiction but one to be determined under the auspices of the CCMA as provided for in Section 191. There was no substance, in the courts view, for the somewhat startling contention advanced by the employee that jurisdiction can be vested in this Court through the simple medium of its arbitrary selection by the employee as the preferred forum for the adjudication of the dispute in question. That submission was manifestly sourced in misinterpretation of the provisions of Section 191(5) (b) and did not bear further analysis.

The employee, in the context of her statement of case, sought in the Labour Court, the adjudication, in addition to her allegation of the automatic unfairness of her dismissal, of her contention that it was, in any event, "not for a good reason" and "inappropriate . . . given the complete absence of any form of corrective discipline as required by the Code of Good Practice", as well as her contention that, having being effected without notice, it was in breach of her contract of employment and in contravention of the relevant provisions of the Basic Conditions of Employment Act.

For the reasons already stated, these latter issues are beyond the jurisdiction of this Court and that the sole issue to which this judgment will be confined is the determination whether or not the employee's dismissal was automatically unfair.

Summary of Dismissal: On the first day of her return from maternity leave the employee received notice to attend a disciplinary enquiry.

The charges related to dereliction of duties in failure to produce proper financial records. There were also charges of neglect in fulfilling basic functions and duties as Group Financial Manager in respect of general ledger and cash book reconciliations and poor maintenance. In addition, after investigation, she was charged with gross negligence with regards VAT returns, PAYE, UIF and RSC levies which had not been finalised timeously resulting in numerous fines, liabilities and penalties to the companies cost. This therefore caused direct financial loss to the company and brought the company into disrepute. The chairperson of the enquiry, described in the disciplinary notice as "independent and external . . . to ensure complete impartiality", presented in his findings that the accused had demonstrated a lack of trustworthiness and had not always acted in the best interest of the company.

It was noted that these responsibilities were fairly elementary and could have been managed with ease and were indicative of her dereliction of her duties.

The company viewed the employee's misconduct in a very serious light and the chairperson recommended to the company that the employee be dismissed with immediate effect.

SUMMARY OF JUDGEMENT: Detailed evidence relating to the charges against the employee which, the company contends justified her eventual dismissal was adduced in the course of this trial. The neglect and inadequacy of various critical aspects of her performance in the responsibility which she held, it was stated, only became apparent during her absence and there was an urgent need to address the serious problems, which had now manifested themselves. It was in that context that, on the advice of its consultants and attorneys, the disciplinary action against the employee upon her return to work, was instituted.

The employee's response to these submissions was based in essence on a defensive challenge to the allegations of her performance inadequacy. In certain respects, factual allegations were disputed, in others, blame was diverted. The hostility towards her, resulting in the disciplinary proceedings and her eventual dismissal was, she contended, fundamentally sourced in the company's irritation at her enforced absence from work, as a consequence of her pregnancy, at a critically inconvenient time, having regard to the prevailing state of affairs in the company's financial administration.

A comparable examination of the principles of such an enquiry was conducted by the Labour Appeal Court in –SA Chemical Workers' Union and others v Afrox Limited (1999) 20 ILJ The court said that in their view, formed on a conspectus of the evidence adduced in this matter, the employee's submission that the disciplinary action and her resultant dismissal were the consequence of a vindictive reaction by the company to the fact of her pregnancy and the inconvenience of her absence in that regard at a time when the company was under severe administrative pressure, cannot be sustained in the face of the detailed allegations of negligence and incompetence upon which the company is adamant that it was based.

The court emphasised however that whilst concluding that the employee's allegation of automatically unfair dismissal could not therefore stand, it was, in the words of Froneman D J P to which was referred, " . . . important to remember that at this stage the fairness of the dismissal is not yet an issue". The court reiterated that, if and when it became an issue, its adjudication would not be the function of this Court which does not have jurisdiction to perform it. In the same context, the employee's allegations of breach of contract and contravention on the part of the company of the applicable provisions of the Basic Conditions of Employment Act arising from her dismissal without notice are inextricably linked to the fairness or otherwise of her dismissal for the substantive reasons alleged by the company. The determination of those specific issues was not the business of this Court but with what the company contends to be the factually accurate reasons for her dismissal, is the function of the forum designated by the statute properly to deal with it.

In conclusion therefore the court found the employee had failed to demonstrate that the reason for her dismissal, whether fair or not, was her pregnancy or any reason related thereto. She was also unable to establish any other unfair conduct by the company over which this Court would have jurisdiction and her application accordingly failed.

 

Gary Watkins

Gary Watkins

Managing Director

BA LLB

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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