fbpx
Customize Consent Preferences

We use cookies to help you navigate efficiently and perform certain functions. You will find detailed information about all cookies under each consent category below.

The cookies that are categorized as "Necessary" are stored on your browser as they are essential for enabling the basic functionalities of the site. ... 

Always Active

Necessary cookies are required to enable the basic features of this site, such as providing secure log-in or adjusting your consent preferences. These cookies do not store any personally identifiable data.

No cookies to display.

Functional cookies help perform certain functionalities like sharing the content of the website on social media platforms, collecting feedback, and other third-party features.

No cookies to display.

Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics such as the number of visitors, bounce rate, traffic source, etc.

No cookies to display.

Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.

No cookies to display.

Advertisement cookies are used to provide visitors with customized advertisements based on the pages you visited previously and to analyze the effectiveness of the ad campaigns.

No cookies to display.

Misconduct in the Workplace

Recent rulings in cases such as Mondry Ngobeni and 51 Others v Interspray Durban CC [2024] JS739-18 (LC) and SARS v CCMA [2024] JR 2223-20 (LC) offer valuable insights for employers navigating the complexities of labour relations and misconduct.

Mondry case

In Mondry, the employer was experiencing a decline in business and proposed alternatives to retrenchment for employees, including short-time work and lay-offs. 

The employees were not satisfied with the proposals as well as the absence of employment agreements and proceeded to embark on an unprotected strike.

The employer notified the employees of contemplated dismissals due to their actions and proceeded to terminate their employment. 

The employees were provided with an opportunity to make representations on appeal as to why their dismissals should not stand.

The Labour Court (LC) found the employees guilty of participating in unprotected strike action and affirmed the substantive fairness of the dismissals. 

The LC highlighted that the employees had an opportunity to make representations on appeal and noted that others who made use of that opportunity were reinstated.

This case confirmed the Labour Appeal Court’s position that there can be legitimate circumstances where an opportunity to be heard is provided after a decision to dismiss. 

Furthermore, the Basic Conditions of Employment Act 75 of 1997 requires an employer to furnish its employees with certain written particulars of employment. 

Accordingly, it is recommended that employers furnish employees with written employment agreements which will contribute towards sustainable employment relationships and fair and consistent treatment.

The SARS case

An operations manager was dismissed for gross negligence related to fictitious transactions. 

The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration that resulted in an arbitration award in favour of the employee. 

The employer reviewed the award.

The LC highlighted the incoherence of the arbitration award and the Commissioner’s errors in evaluating the evidence, amending the charge to a less serious charge, and incorrectly assessing the employer’s consistency in applying discipline in its workplace.

This case highlights the importance of an employer exercising consistent application of disciplinary action in respect of misconduct. 

Furthermore, the gravity of the misconduct is vital in directing the nature of the disciplinary action and the applicable sanction in holding employees accountable and ensuring fairness in the workplace.

By Nadeem Mahomed, Marco Neto and Pebetsi Letsoalo, CDH