The Labour Court had to again, recently (the matter was heard on 31 August 2023 and the judgment was handed down on 10 April 2024) consider a dismissal which went back to the “Covid-19 era” in the matter of Penbro Kelnick (Pty) Ltd and the Commission for Conciliation, Mediation and Arbitration, and Others under case number JR2118/2021.
In summary, an employee was disciplined for not wearing a face mask, and the normal sanction in that particular workplace, was applied, namely a written final warning. The member of the senior managerial team involved, from the employer, was upset as a result of what he regarded as the dishonesty of the employee around why the employee was not wearing his face mask at the time. The senior managerial employee apparently used some terminology which the employee found offensive, and matters escalated to the point where, despite the written final warning being applied, the employee was disciplined again, and dismissed. The employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration, and the Commissioner found that his dismissal was substantively unfair, and ordered his retrospective reinstatement, together with backpay.
The employer, Penbro Kelnick, took the matter on review to the Labour Court, and in considering the matter, the Labour Court had to address two key aspects namely whether an employer could take further disciplinary action arising out of the same set of facts, and whether, in the circumstances, dismissal was appropriate.
In relation to the first aspect, the court restated the position that an employer could take further disciplinary action arising out of the same set of circumstances, when it was appropriate to do so.
More interestingly, however, was the position adopted by the court in relation to the second aspect. The court referred, in paragraph 37, to the position in De Beers Consolidated Mines Ltd v CCMA & Others [2000] 9 BLLR 995 (LAC) (De Beers Judgment), at paragraph 22 “that a dismissal should not be an expression of moral outrage or an act of vengeance, but rather should be a sensible operational response to risk management in the enterprise”. The court continued and stated that, to the extent that the employee had been charged with dishonesty, it was also said in the De Beers Judgment “… that the seriousness of dishonesty, and whether it can be classified as gross or not, depends not only or even mainly on the act of dishonesty itself, but on the way in which it impacts on the employer’s business. In other words, it does not imply that every act or misconduct involving dishonesty will lead to a dismissal. Worst still, a misconduct cannot be gross simply based on the subjective opinion or feelings of a manager. The gross nature of misconduct necessitating a dismissal can only be gleaned from the objective facts”.
The court ultimately concluded that the Commissioner’s finding was correct and that the employee’s dismissal was not an appropriate response to an operational risk.
On the face of it, it makes sense that dismissal cannot be based only on moral indignation or vengeance, but sometimes moral indignation is a completely understandable emotion in response to breaches of certain workplace safety rules, particularly where these breaches result in workplace incidents, accidents, and deaths.
As a health and safety specialist, I represent clients during the inquiries that are conducted both in respect of mining and non-mining workplaces, following the death of one or more employees in the workplace. I sit across families who have lost loved ones, and, in most instances, family members expect nothing less than dismissal for persons who are shown, or even perceived, to have been responsible for the death of their loved ones.
Breaches of health and safety rules in the workplace are normally a “non-negotiable”, and a “zero tolerance” approach is adopted i.e. the breach results in dismissal. Where these workplace health and safety rules are drafted properly, and enforced in accordance with South Africa’s Labour Laws, it is not necessary to debate whether moral indignation or, in certain instances, vengeance, should play a role or not.
Properly considered workplace health and safety rules are, in most cases, already an expression of the health and safety culture in a particular workplace, which, as a natural consequence, would include, to some extent, a reflection of the attitudes towards health and safety, and may include some moral indignation in justification for dismissal when these workplace health and safety rules are breached.