Prove true reason: Obligation of management

2 Comments

1. 

   GilesFiles on April 22, 2017 at 7:03 am

   Poor work performance, and the “obfuscation” between incapacity and misconduct: Darcy du Toit’s Comment in IR Network published by LexisNexis [subscription required]

   Is “poor work performance” misconduct or is it a form of incapacity? The question is important, because dismissal based on incapacity requires a very different procedure to be followed compared with the disciplinary procedure associated with misconduct. But, as two recent judgments demonstrate, the answer may not always be clear.

   In Consol Glass v National Bargaining Council for the Chemical Industries (Case no: JA 5/15, 3 February 2017) the employee had been dismissed for misconduct in the shape of “gross dereliction of duties” due to repeated poor work performance. The bargaining council arbitrator agreed that the dismissal was fair.

   On review it was argued in the Labour Court, among other things, that the dispute should have been categorised as one of incapacity rather than misconduct. The court agreed that this might well be so but found that it was “not for the Court to decide. The fact of the matter is that [the employee] was dismissed, fairly or unfairly, for reasons related to his conduct” (quoted at para 24 of judgment).
   . . . . .
   This leads on to the difference between misconduct and incapacity arising from poor work performance. At least on paper the test is clear. In essence, misconduct involves an element of blameworthiness on the employee’s part. Poor work performance could therefore amount to misconduct if the employee deliberately underperforms or is able to perform but fails to do so through negligence (as opposed to circumstances beyond her or his control). But, if it is due to genuine inability to perform, it amounts to incapacity.

   In both cases, of course, the fairness of any dismissal is a separate question which needs to be assessed in terms of the Code of Good Practice: Dismissal.
   . . . . .
   It is conceivable that employers’ irritation at “incompetence” on the part of employees and possible losses arising from this may incline them to “punish” them by launching disciplinary proceedings. But, as the Consol judgment shows, it is important to look carefully at whether the problem was caused by “fault” on the employee’s part or whether, with reasonable guidance, the employee could develop into a motivated and valued member of the team.

2. 

   GilesFiles on April 22, 2017 at 7:35 am

   Comment by Graham Giles

   Management could have avoided all these problems by adopting a different procedure. There is no special magic when it comes to deciding on the reason for dismissal as long as it makes commercial sense. In other words it must affect the enterprise but when it is alleged that the reason is related to conduct or capacity/capability then employees must be afforded the right to respond to the allegations.

   But the law does not require employers to prove any ‘fault’ to justify dismissal. This is clear because the LRA does not use the words ‘misconduct’ or ‘incapacity’. But the BCEA does relieve employers of giving notice when the reason for dismissal is due to material breach or contract (gross misconduct). In other words employees forfeit any right to notice by their own gross misconduct but not otherwise, even if the reason for dismissal is valid and fair.

   So for a reason to be valid it could fall into any of 3 main categories and there are usually some overlaps making the reason a hybrid:

   • pure and simple operational requirements;
   • grey area related to conduct or capacity [such as persistent late-coming, insubordination, etc]; or
   • gross misconduct.

   It is suggested that if there is clear and convincing evidence of gross misconduct senior management should follow the Code of Good Practice to the letter with regard to procedure. But we now know that there does not have to be a formal hearing. See: No right to verbal hearing: Right to respond sufficient

   Management must present employees with the facts in writing (without any evidence) and allow employees to respond in writing or in some cases verbally. But there is no legal requirement for a formal disciplinary ‘hearing’ with all the trappings of a criminal-type trial. In the absence of any acceptable explanation management would be entitled to end employment without notice (summarily).

   If employees are stupid enough to take the matter further then they risk being exposed by the evidence that will be presented at the formal hearing in the CCMA/ BC or even labour court. But that is their choice and management would be protected from any risks of defamation because the ’employee asked for it done’.

   So it is suggested that in all instances other than gross misconduct it would be sensible for management to adopt the procedure required by the LRA s 189 and engage in a meaningful joint consensus-seeking process more akin to dialogue. Obviously managers will provide all the facts that they may wish to rely on for a valid reason and allow employees to respond. But it will be clear from the outset that the process will be lawful and employees will not forfeit reasonable notice pay and even severance pay. This is so because management is then relying on operational requirements and there is no suggestion of any breach of contract.

   This process has been specifically sanctioned by the LAC as there cannot be any prejudice to employees. See Operational requirements: choice when even conduct related

   One cannot escape the thought that it is all very simple but matters have been complicated by practitioners who gain financially by suggesting that the issues are far more complex than they really are.