Misconduct Dismissal: “Intolerability” Not Be Confused With Mere “Incompatibility”

In the case of Coldset (Pty) Ltd v Singh DA 1 2021 2022 ZALACD 8 2 June 2022 an employee exited the premises by driving down a one-way lane. To avoid colliding with an oncoming vehicle, he drove his vehicle backwards. A fellow colleague's son told the employee it was a “no-entry zone”. In response, the employee drove his vehicle at an aggressive speed towards him and swore.

At a disciplinary hearing the employee admitted guilt. The employee had 33 years’ clean service. The Chairperson factored in that the employee was coming off night shift, was tired and may have been in shock. The employee expressed his intention to reconcile with his fellow employee.

The Chairperson found that a final written warning was appropriate on condition that he issues a personal apology to the colleague and son.

During the meeting, where he was expected to tender his apology, the employee refused. The employee indicated he would be challenging the outcome. The employee was charged with further misconduct for his subsequent actions.

At the second hearing, the employer contended that the employee’s conduct breached the trust relationship. The Chairperson found that the employee had contravened the employer’s standard of trust and that, given his supervisory role, he was aware of the conduct required of him and the importance of upholding the image of the employer.

Dissatisfied with his dismissal, the employee referred an unfair dismissal dispute to the CCMA. The Arbitrator found that the employee was the “author of his own fate”. The dismissal was, therefore, found to have been substantively fair.

The employee sought review of the arbitration award by the Labour Court (LC). The LC found there was no evidence that the other parties were dissatisfied with the employer or that the situation impacted negatively on the employer.

The failure to render an apology did not bring the employer into disrepute. The sanction imposed was found to be “unnecessarily harsh”. The employer approached the Labour Appeal Court (LAC). The LAC found that the LC had treated the review application, which came before it, as an appeal and not a review.

The LC failed to have regard to if the decision of the Arbitrator was one to which a reasonable Arbitrator could not reach. The LAC found that the employee had conducted himself in a patently unacceptable, unwarranted, threatening, abusive and intimidatory manner towards a woman and her son within the confines of the employer’s premises without any justification.

Far from taking heed of the final written warning, the employee chose not to comply with the terms and engaged in misconduct similar to that previously committed. For these reasons the appeal must succeed.

This is where I believe that amendments need to be made to the Labour Law system. An employee acting in this way should be dismissed regardless of his or her years of service. Actually, years of service could be aggravating.