“Integrity is choosing your thoughts and actions based on values rather than personal gain” – Anonymous
Often employers fail to succinctly apply the disciplinary code to errant employees; this lack of throwing the book, instead, seems to be a throwing of the entire library as well as the kitchen sink, by virtue of the multiplicity of charges put to an employee, in the hope that something will stick.
Moreover, preceding the charge with the word “gross,” so as to make the matter sound more serious than it actually is, in an attempt to convince the chairperson to render a sanction of dismissal.
MISA recently published an article, whereby the right of an employee to understand charges, in order to render an appropriate explanation or defence to the charges, was explained in detail. The importance hereof, is to provide members, facing disciplinary hearings, a clear understanding of what the charges are, they have to answer to.
The nature of the charge; sufficient detail of the surrounding circumstances that led to the charge, is of utmost importance. Irrespective of the wording or phrasing of the charges on the charge sheet, members are encouraged to pay special attention to the facts being presented and answer to them accordingly.
Substance over Form
Our courts have said that people who are not legally qualified and trained, generally draft misconduct charges in the workplace. The courts therefore adopt the principle of substance over form.
The Labour Appeal Court (LAC) in the matter of South African Society of Bank Officials (SASBO) and Another v The Standard Bank of South Africa Ltd and Others JA32/2021 stated the following: “The trier of fact [the Commissioner] is expected, in the context of discipline in the workplace, to deal with the wrong committed by an employee even if the charge may have been inelegantly phrased provided that the employee is not significantly prejudiced by the incorrect labelling of the charge…”
One such charge, irrespective of substance or form that would be enough to send a chill down anyone’s spine, is that of “dishonesty.”
The Charge of Dishonesty and Appropriate Sanction
MISA recently assisted a member who was charged with dishonesty whereby a member signed certain documentation on behalf of clients, without proper authorization or without following proper protocol.
Dishonesty in the workplace, almost always results in a dismissal (even on a first transgression), and this is so because our Courts have said that a breach of trust in the form of conduct involving dishonesty is one that goes to the heart of the relationship and is destructive of it.
According to Grogan, “dishonesty is a generic term embracing all forms of conduct involving deception on the part of the employees. Dishonesty can consist of any act or omission that entails deceit. This may include withholding information from the employer, making a false statement or misrepresentation with the intention of deceiving the employer, or corruption. In Nedcor Bank Ltd v Frank (2002) 23 ILJ 1243 (LAC), the LAC held that dishonesty entails a ‘lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. The court also held that the term implies intention on the part of the employee; just as one cannot steal negligently, negligence, however gross, cannot give rise to a charge of dishonesty.”
However, Grogan further explains that not all forms of dishonesty warrant dismissal, as each case will be assessed on its own merits.
This is evident from the following two Labour Appeal Court (LAC) cases.
In Massmart Holdings v Reddy and Others  4 BLLR 337 (LAC), the employee was dismissed for misconduct relating to dishonesty and gross negligence. He referred an unfair dismissal dispute to the CCMA. The arbitrator found the dismissal to be both procedurally and substantively fair. The arbitrator found that the employee had been dishonest on the basis that he did not complete a risk assessment worksheet and had been grossly negligent in that he failed to timeously submit the worksheet and to inform his line manager that he was unable to meet the deadline. As a result, the arbitrator found that the employee’s dismissal was fair. However, on review to the Labour Court (LC), the award was set aside and the employee was retrospectively reinstated. On appeal, the LAC agreed with the LC and accordingly dismissed the appeal.
In South African Society of Bank Officials (SASBO) and Another v The Standard Bank of South Africa Ltd and Others JA32/2021, the LAC had to determine whether the conduct of the employee in so far as it is alleged by the employer that she falsified its records, amounted to dishonesty and thus breached the duty of trust and fidelity she owed to the employer.
The employee was a foreign exchange consultant and was responsible for, inter alia, operating an automatic teller machine safe, which contained her cash for the day. She would use the cash to load various ATM’s. Once she had done so, she was required to adjust the amounts that had been loaded into the ATM’s, the system would then reflect that the money is no longer in the safe but in the ATMs. At the close of business, she had to ensure that all her transactions were adjusted. Thereafter, she would balance her safe by physically counting the money in the safe and recording the balance in the system. The money in the safe had to be reflected in the bank’s records or system as the balance for the day. A surprise cash count was conducted on 21 February 2017 because of the deficiencies and surpluses that occurred over the period 17 to 20 February 2017. A shortage of R 528 000-00 was discovered, however the bank did not suffer any losses as the money was traced to a “house” account.
She was placed in a disciplinary hearing for dishonesty in that she falsified the bank records when she balanced her till with money that she did not have in order to show a balanced positon. She was found guilty and dismissed.
The Arbitrator found that the employee had been negligent as opposed to being dishonest and consequently concluded that her dismissal was substantively unfair. She was awarded retrospective reinstatement as well as 5 months compensation.
The LC, however, found that the misconduct complained of was serious enough to warrant dismissal. On appeal, the LAC agreed with the LC and dismissed the appeal.
Surprisingly, it is not uncommon for employers to draft incorrect charges or for chairpersons to misconstrue the nature of the charges, or apply the incorrect legal test in evaluating the evidence presented during disciplinary hearings, resulting in unfair outcomes. It is always wise to contact MISA immediately for sound legal advice when issued with a notice to attend a disciplinary hearing.
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Kindly utilise the following e-mail addresses and links for assistance:
Legal/Labour-related enquiries Legal@ms.org.za
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