WHEN SHOULD AN EMPLOYEE SHOW REMORSE
The Labour Court considered the legal principles governing insubordination and found that when an employee deliberately refuses to obey reasonable and lawful instructions and subsequently shows a lack of remorse for his conduct this justifies his dismissal.
The Labour Appeal Court further found that when an employee had been dishonest and showed no remorse for his dishonesty, his dismissal was justified.
Failure to discipline swiftly
The Labour Court considered a delay of one month between the time that the incident of an assault came to the employers attention and the time in which it instituted a disciplinary hearing as an indication that it did not consider the assault serious enough to warrant prompt action and if it was not serious enough to warrant prompt action then the alleged misconduct certainly was not serious enough to warrant a dismissal. This is particularly so when no evidence is led to prove that the employment relationship had broken down.
The Labour Court, as a result, set aside the dismissal and ordered that the employee be reinstated with full retrospectivety.
Consultations with a traditional healer
When an employee consulted a traditional healer believing it necessary for his grandfather’s spirit but not requesting formal leave the Bargaining Council considered whether or not there was an intention to return to work and found that the employee intended to return to work and as such the sanction of dismissal was too harsh.
When should a second hearing be held
An employer called for a second disciplinary hearing when the chairperson of the first hearing gave an outcome which the employer believed was not consistent with its practice. The employer called for a second hearing and at that hearing the chairperson found for the employee’s dismissal. The Bargaining Council found that there are generally two factors necessitating a second hearing: the first is when the first hearing was not a proper hearing at all and the second is when the hearing is related to a different offence. This was not the case in this instance and the termination of employment was set aside.
Distinction between misconduct and poor performance.
The court recently set out the questions which must be asked to distinguish between the misconduct and poor performance quite succinctly and eloquently. It stated that when an employee tried but could not this constitutes poor performance but when an employee could but did not this is misconduct.