Gross dishonesty

Dishonesty in the employment context can take various forms, including theft, fraud and other forms of dishonesty. Theft is regarded by the labour courts as one of the most serious forms of disciplinary offence, normally justifying dismissal first instance, regardless of the value of the property involved, the employee’s length of service, the absence of prior warnings, or whether the employee subsequently returned the property.

As in all cases of misconduct the employer must prove on a balance of probabilities that the employee committed the offence or was an accomplice to it. A proper inquiry must be held in cases of alleged theft, during which the employer is obliged to satisfy itself that the employee is guilty. Other forms of dishonesty also justify dismissal. Fraud is a common example. The courts have upheld the dismissal of employees for falsely claiming that a company car had been hijacked, falsely claiming overtime pay for work not performed, and falsely claiming qualifications, while persisting with the lie.

Conflict of interest

Employees are required to devote their energies to advancing their employer’s interest. Conduct in which employees intentionally place themselves in situations where their own interests conflict with those of the employer therefore renders the employment relationship intolerable and justifies dismissal. This typically occurs when employees enter into relationships with their employers competitors or engage in business activities which actually or potentially conflict with their employers’ business interest.

Wilful damage to property

To justify dismissal, damage to property must be willful and serious.

Assault and fighting

Assault is defined as the unlawful and intentional application of force to a person, or a threat that such force will be applied. The force can take a number of forms, and need not necessarily involve the actual application of physical force; threats of violence may suffice. The employer is entitled to dismiss even if the assault takes place off the work premises, provided that it relates to the employment situation.

Gross insubordination

The labour courts have distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer’s instructions). Insolence has been held to warrant disciplinary action and, where appropriate dismissal. It is with impudence, cheekiness, disrespect or rudeness. Insolence justifies dismissal only if it is willful and serious. Insubordination is a more serious offence than mere rudeness because it presupposes a calculated breach by the employee of the duty to obey the employer’s instructions.

The gravity of insubordination depends on a number of factors, including the action of the employer prior to the alleged insubordination, the willfulness of the employee’s defiance and the reasonableness or otherwise of the order that was defied. So refusal to obey an instruction to the employee to do work which was illegal or which the employer legitimately felt he was not qualified to perform was held no to amount to insubordination.

Sexual harassment

Sexual harassment may be described as persistent, unsolicited and unwanted sexual advances or suggestions by one person to another. Sexual conduct covers a wide range of actions from the obvious physical contact through to verbal forms such ad innuendoes, suggestions and hints, comments with sexual overtones, sex-related jokes or unwelcome graphic comments about people’s bodies made in their presence or directed at them, inappropriate inquiries about a person’s sex life, unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects. Quid pro quo harassment. This occurs when an employer or superior ‘undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant in exchange for sexual favour. All employers should adopt policies on sexual harassment. All employees, job applicants and other persons who have dealings with the business have a right to be treated with dignity, that sexual harassment is prohibited, that victims have a right to raise a grievance with the assurance that the appropriate action will be taken, and that disciplinary action will be taken against employees who not comply with the policy.

The problem of sexual harassment should also be dealt with tin staff orientation, education and training programmes. Complainants must be given the choice between informal attempts to resolve the problem and formal proceedings against the alleged perpetrator. The informal procedure entails explaining to the perpetrator that the behaviour in question is unwelcome and offensive, makes the victim uncomfortable and interferes with this or her work. If this has no effect, or if the first instance of harassment is serious, formal action should be taken. This should entail an investigation and, if necessary, disciplinary action against the offender. If the outcome does not satisfy the complainant, the dispute can be referred to the CCMA for conciliation in terms of
section 135 of the LRA, and thence, in the event of settlement not being reached, to the Labour Court which, in terms of the Employment Equity Act, will have the power to ensure that the situation is rectified.

Abusive and racist language

The use of abusive language by one employee to another employee may amount to harassment, but not necessarily so. However, where it is sufficiently serious, an isolated incident of verbal abuse may in itself merit dismissal, particularly if it is accompanied by malice, when it is directed at a female, when it is used in the presence of other employees or customers, where there was no justification for the utterance, or where the user showed no remorse. On the other hand, racist abuse may serve as a mitigating factor if the victim reacts violently against the perpetrator.

Intoxication on duty

Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation. An employee is ‘under the influence of alcohol’ if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. If employees are charged with being ‘under the influence’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyzer tests, but if such equipment is not available, evidence of physical observations of the employer may be sufficient. Being under the influence of alcohol while on duty does not, however, inevitably justify dismissal.

Unauthorised use of company property

Property made available to employees by their employers must be used for work-related purposes, unless the employees obtain permission to put it to other uses. So, employees who use company vehicles for private purposes may be dismissed if there is a clear rule prohibiting such use. Computer equipment lends itself to abuse of this kind.

Time-related offences

In assessing the fairness of a dismissal for absenteeism or unpunctuality the following factors are normally considered relevant: the reason for the employee’s absence, the employee’s work record, and the employer’s treatment of this offence in the past. Employees charged with absenteeism must generally be given an opportunity to explain their absences, or to plead in mitigation

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714

For nay help on CCMA cases please contact Bernard Reisner on details above – CCMA Form can be downloaded here