WEBSITE ARTICLE:  CHALLENGING A FINAL WRITTEN WARNING

27th June 2022

1.  THE ISSUE

On occasions an employee is dismissed because the employee commits an act of misconduct during the duration of a final written warning. 

The dismissed employee refers the dismissal to the CCMA as an unfair labour dismissal.  At the arbitration hearing, the employee raises the defence that the final written warning was incorrectly issued.  The employee argues that the CCMA Commissioner must take into account the employee’s evidence showing the final written warning was issued incorrectly.

The question to consider is this: must the Commissioner consider the evidence relating to the alleged unfairness of the final written warning, or must the Commissioner ignore such evidence and only look at the reasons for the dismissal.

This issue came before a CCMA Commissioner where the applicant referred her alleged unfair dismissal by her employer, ABSA Bank, to the CCMA.  The Commissioner decided that an alleged unfair final written warning can only be challenged at the CCMA by the employee referring the matter to the CCMA as an unfair labour practice in terms of Section 186(2) of the Labour Relations Act (Act 66 of 1995) (“LRA”). 

2.  THE RULING BY THE COMMISSIONER

The matter before the Commissioner concerned the alleged unfair dismissal of the employee referred to the CCMA in terms of Section 186(1) of the LRA.  The applicant had never referred her final written warning to the CCMA as an unfair labour practice the Commissioner ruled that he had no right or obligation to consider the validity of the warning.  The Commissioner found that the Applicant’s dismissal was fair. 

The applicant, one Fiona Kock, took the Commissioner’s Award on review to the Labour Court.  She argued that the Commissioner erred by not considering her argument that the final written warning was invalid. 

The Labour Court agreed with the Commissioner’s decision. 

The lessons learnt from this matter are the following:-

A CCMA Commissioner only has to consider the following when deciding on the fairness or unfairness of a dismissal matter:

  1. Was the final written warning issued to the employee?
  2. Was the employee aware that he or she had received the warning?
  3. Does the warning concern the misconduct for which the employee was dismissed?
  4. Was the final written warning still alive at the time the employee committed the misconduct for which the employee was dismissed?

For employees the lesson learnt is that where a final written warning is issued, if the employee does not agree with the warning, that warning can only be challenged by referring it to the CCMA as an unfair labour practice in terms of Section 186(2) of the LRA.  Should there be no referral to the CCMA, a dismissed employee cannot raise it as a defence at the CCMA. 

Les Owen

FIXED TERM CONTRACTS

14 April 2022

A recent Labour Appeal Court decision held that where an employee on a fixed term contract mistakenly is allowed to works after the expiry of the contract, this does not mean that the employee becomes a permanent employee.

The Court held that the matter had to be decided on a careful consideration of all the facts.  The case in question is Gauteng Provincial Legislature v Commission for Conciliation, Mediation & Arbitration & others (2022) 43 ILJ 616 (LAC).

However, this decision is contrary to the decisions in two (2) other cases where it was held that if the employee was allowed to work after the expiry of the fixed term contract basis amounted to a tacit renewal of the employee’s contract of employment on a permanent basis. 

The two (2) cases are:

  1. Department of Agriculture, Forestry and Fisheries v Teto and Others (CA8/2019) [2020] ZALAC 19 (28 May 2020) ;  and
  2. Owen & others v Department of Health, KwaZulu Natal (2009) 30 ILJ 2461 (LC).

So the situation is somewhat confusing but there is some light at the end of the tunnel for employers who mistakenly allow fixed term contracts to continue working without a new formal contract coming into being. 

Les Owen

EMPLOYEES REFUSING CHANGE

14 April 2022

I thought you may be interested in the Constitutional Court matter which concerns an employer’s right to making significant changes within the Company to meet external challenges. 

Frequently when a business sees the needs to make changes which affect employees, employees through their Trade Unions or Shop Stewards resist accepting such changes. 

The question is can such employees be dismissed?

The answer rests in the Constitutional Court’s decision in the matter of National Union Of Metal Workers Of South Africa and Others v Aveng Trident Steel (A Division Of Aveng Africa (Pty) Limited) and Another CCT178/19. 

To quote from the judgement:

“Restructuring entails a number of possibilities, including shift system duties; adjusted remuneration; and merging of jobs or duties. Generally, businesses that adapt quickly will survive and prosper. Those that do not will decline and fail.”

The simple answer is yes, particularly where the proposed change has as its objective the saving of jobs within the business.

Les Owen