Tag Archives: ccma

Get your evidence sorted out

Get your evidence sorted out.

What should an employer do when there is theft of stock but no culprit can be identified? The answer is carry on investigating! This seems to be a better option than relying on risky principles such as “derivative misconduct” or “common purpose”, etc. where a whole group of employees is fired without there being proof of any single individual being involved in the theft.

In a bargaining council arbitration – NUMSA on behalf of Ntuli & Others and Argent Steel Group (Pty) Ltd – reported in the Industrial Law Journal, volume 34, 2013, page 1063, the arbitrator stated that the test for derivative misconduct was:

  • The employees must have known or acquired knowledge of the wrongdoing; and
  • The employees must have failed, without justification, to disclose that knowledge or take reasonable steps to help the employer acquire that knowledge.

Despite a lot of work having been done by the employer, the employer failed to establish “derivative misconduct”. The applicants were all awarded 6 months salary.

“Unpaid suspension can still be implemented as a punishment”

In a case before the Labour Court, suspension without pay was again found to be permissible and not contrary to the Basic Conditions of Employment Act. The case is reported at page 978 of the Industrial Law Journal, volume 34, 2013 – NUMSA & Others v Martin & East (Pty) Ltd.

The court re-affirmed that suspension without pay did not constitute an unlawful deduction in terms of section 19 of the Basic Conditions of Employment Act.

Therefore, not being paid during suspension is not a “deduction”. Section 19 protects wages that are due for services rendered. If no services are rendered then wages are not due.

Please note that we are talking about suspension as a disciplinary outcome and not suspension prior to a disciplinary hearing.

Employers Beware: Some CCMA Commissioners Will Seek To Burden You With “Social Responsibility!”

Employers Beware: Some CCMA Commissioners Will Seek To Burden You With “Social Responsibility!”

I attended a conciliation hearing, together with my client, at the Pietermaritzburg office of the CCMA concerning the dismissal of an employee for theft.

At the internal disciplinary hearing, the accused employee admitted having stolen from the company. She again confirmed this at the conciliation hearing. This should have been the end of the matter – either the commissioner should have advised her to withdraw her case or the matter should have been certified as unresolved.

However, the commissioner told us that since the applicant was pregnant we should reinstate her, thereby meeting our “social responsibility”. The commissioner placed a lot of pressure on my client to settle by way of reinstatement, so much so, that we were made to feel like the guilty party.

Since we stood firm on the matter, the commissioner called in a senior commissioner “from upstairs” who also did his best to get us to reinstate the applicant, as she was pregnant and we had a social responsibility to look after her.

We stood firm (but many other respondents might have buckled under such pressure – prolonged pressure) and we did not settle.

The fact of the matter is that the employee had been fired for theft (that had been factually established) and which misconduct had been confirmed by the applicant, yet the CCMA commissioners sought to impose a “social responsibility” on the respondent to reinstate the applicant “because she was pregnant”.

Warning to respondent employers: stand firm and don’t buckle to this “social responsibility” nonsense, whereby we are expected to forgive criminality in the workplace.

Greg Coombs