Volksrust Recorder - Column/Rubrieke 10 Recorder 10 June 2016 Change Your Story With Jacques de Villiers Volksrust Seme Business Chamber Onus of Proof and Employer’s Obligation during Dismissal Disputes By Magate Phala For more information, please call Willem Hussel-mann - 082 415 7725 Freddie Kapp - 017 735 4444 Ashraf Moola - 082 588 5515 When an employee who has been discharged for misconduct declares an unfair dismissal dispute at the CCMA or any relevant Bargaining Council, the employee must establish the existence of the dismissal. The employer is then required not only to prove that the dismissal was procedurally and substantively fair but also to show that the affected sanction of dismissal was an appropriate penalty in light of the circumstances of the employee’s transgression and all the relevant facts in their totality. In Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA), the court emphasised that in a dismissal dispute, the employer must lead evidence regarding the appropriateness of the dismissal as a sanction. Section 192 of the Labour Relations Act, 66 of 1995 provides that In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and if the existence of the dismissal is established, the employer must prove that the dismissal is fair. Section 188 (1) of the Labour Relations Act supra further provides that a dismissal that is not automatically unfair will be rendered unfair if the employer fails to prove: (a) That the reason for dismissal is a fair reason and (i) That it is related to the employee’s conduct or capacity, or (ii) That it is based on the employer’s operational requirements and that (b) The dismissal was effected by a fair procedure. Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected by a fair procedure must take into account the Code of Good Practice: Dismissal. It is not a given that if the employee is found guilty of misconduct that a sanction of dismissal should be applied. Employers have a further duty to lead evidence showing that the employee by his conduct has breached the trust relationship. Moreover, in some cases, where the employee has been found guilty of dishonesty, employers may argue before the Commissioner that by applying the principle of Res Ipsa Loquitur and relevant case law that dismissal is the only suitable penalty. In De Beers Consolidated Mines Ltd v CCMA & others [2000] 9 BLLR 995 (LAC) at para 22, the Court, per Conradie JA, held the following regarding risk management: ‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’ In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others [2008] 3 BLLR 241 (LC) at para 42 that: ‘the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employee damages the trust relationship which underpins the essence of the employment relationship.’ In Kalik v Truworths (Gateway) and Others [2008] 1 BLLR (LC), the Labour Court held that an employment relationship ‘…broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/ her employ. The other reason for this is to send an unequivocal message to other employees that dishonesty will not be tolerated.’ In Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC), the court held that business risk is predominantly based on the trustworthiness of company employees and that the accumulation of individual breaches of trust has economic repercussions. Written by Magate Phala, who specialises in Labour Law, and writes in his private capacity. For more information, kindly contact Magate Phala at [email protected] To see all the services on offer please visit the website, www.jokinspirational.co.za, email at [email protected] or contact Ps John Oscar Kubeka on 0720796796/ 0833691930 for more information. JOK Insparational Choice Only choice could set you free in all the burdens you are facing. The time is now to make the right choice that will make you proud of yourself. There are things in life that will make you proud when your choices let your faith defeat all the impossible in order to be possible. Believe in everything you do. God will give you blessings when you have the courage to achieve beyond limits. You are defined as a successful human being in the world therefore you owe yourself a big favour to ensure that you excel in everything you do. Do what you do best, don’t look back to regret the choice you took about your future. ~JOK~ I’m sure like me, you’ve watched schoolboy rugby. It’s loads of fun. There are enough vignettes going on both on and off the field to keep everyone interested. Par for the course: Red- faced coaches, bombastic fathers trying to recapture their manhood and youth by berating the referee, war cries, mothers cringing at every tackle that their little darlings have to endure, oranges at half-time, new-boys running around serving the every whim of their old boys, the non-joiners sneaking off for a smoke and a scrum at the tuck shop for Chelsea Buns. And, of course, the whole point of this exercise is for each team to try its best to win ... at all costs. It is the “at all costs” bit that causes me to pause. I’ve seen the size of some of the forwards - they could play for a provincial side. The locker-room steroids run contributing to their bulk, no doubt. I’ve heard that schools ‘buy’ players from other schools to join their first teams. Astronomical sums are paid to get the best coaches on-board. I don’t believe that this win at all costs, by hook or by crook culture is at all helpful to produce upstanding young adults. This win at all costs culture is not just the domain of rugby, of course. Primary school children have their speeches written by professional speech writers so that they can win their competitions. When a mother complained about this to a headmaster he said that “everyone is doing it” and that she needs to “get with the programme”. Jesus weeps! First year university students make extra money by writing papers and doing projects for high school pupils. The character of our children reveals the character of our parents, headmasters and teachers. When we condone this practice as parents and teachers, what are we really telling our children? Hey, it’s ok to cheat. It’s ok to buy resources to help us because we’re too lazy or stupid to do the task ourselves. It’s ok to take short cuts and not develop our mental and physical abilities. It’s not ok For further information: Jacques de Villiers 082 906 3693 www .jacquesdevilliers.com Cheat Nation for a teacher to discipline us for transgressions - mommy and daddy will be in the headmaster’s office quicker than you can say “detention”. It’s ok to buy or bully our way out of any situation. Surely the point is actually to develop and reveal character and not to win? If you win, that’s a bonus. The point is not about winning or losing but how you play the game. Surely the point is to teach our children the value of hard work, dedication, grit, determination, teamwork, collaboration, how to deal with the disappointment of losing, how to get off your knees after a devastating failure, how to have each other’s back, honesty, integrity, fair play, good sportsmanship and how to set others up for success. Surely the point is to make our children better human beings? Humans that actually give a damn about more than their self-interest. Because the reality is that in the real world a ‘winner takes all’ attitude is a recipe for disaster. We’ve seen it in this beautiful country of ours. Our win at all costs culture has created the Frankenstein monster most of us have become - wreaking havoc, destruction and chaos wherever we go. Our quest for self-interest through short cutting, lying and cheating has almost brought this country to its knees. And, we may be on our knees sooner than we think. Maybe because I still have a bit of a romantic streak in me that is an island in the sea of cynicism that is my life, I believe that we can become better human beings and useful citizens. But it will have to start with the parents and the schools who have to say “no more”. No more do we condone cheating, lying, and buying our way out of trouble. No more. We want to develop children with character, courage, and honour. We want our children to help others to succeed because when they do that, everyone succeeds.