COMMON SENSE MISCONDUCT: Failure to apply common sense can produce bizarre results.

LABOUR LAW in a Nutshell June – July 2022

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The obsession with rigid procedural technicalities in disciplinary enquiries to try and dodge accountability for obvious misconduct can blur common sense and produce bizarre results. The Labour Court again noted this unfortunate tendency in a recent judgment involving Volkswagen.

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Perk & Rule

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Volkswagen has a perk which allows its employees to lease its vehicles. The rule is that only authorised persons are allowed to drive them – and if they’re damaged, any repairs must be done by approved repairers.

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Bizarre Facts

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Employee A – leases a company vehicle and allows an unauthorised person to drive it. It gets damaged and needs repairs.

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Employee B – a friend and fellow employee says “No problem – my boyfriend’s in the hijacking business. You can stage a hijacking and he’ll fix the vehicle so you can dodge accountability.”

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Employee A – says “Thanks, great idea” and proceeds to stage the hijacking. He reports it to the police but confesses to the staged hijacking during interrogation. He also tells them that it was all Employee B’s idea. The Company dismisses him for misconduct following an enquiry. And he refuses to testify against Employee B.

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Employee B – The company doesn’t charge her for the staged hijacking because Employee A refuses to give evidence against her. So, she’s charged and dismissed for “Facilitating the repair of the leased vehicle by persons not authorised to do so”. She cries foul and promptly goes off to the CCMA to complain that her dismissal was unfair.

Bizarre Ruling

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The CCMA rules that Employee B’s dismissal was substantively unfair. This was because the Company had no written policy dealing with the reasons for the employee’s dismissal. So, the Company did not discharge the onus of proving that she committed the misconduct she was dismissed for. The Commissioner did not order re-instatement because he found she had been dishonest when giving evidence. He instead ordered the company to re-employ her.

Common Sense Prevails?

Labour Court would have none of this and rejected the Commissioner’s ruling. It noted that the employee was aware that she was facilitating the commission of serious misconduct. And the evidence proved that she facilitated Employee A’s misconduct. She actively aided and abetted it by introducing Employee A to her boyfriend to get the leased vehicle repaired by an unauthorised person.

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She was dismissed for actively facilitating serious misconduct. The company’s failure to present a written policy against “Facilitating the commission of the misconduct” was irrelevant.

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TIP: This judgment shows that employees can be fairly dismissed for acts of misconduct which are not specifically listed in the employer’s written policies or disciplinary codes. An employer is entitled to expect employees be honest and to act in good faith in all their activities in the employment relationship. Item 7(a)(ii) of the Dismissal Code of Good Practice refers simply to the requirement for ‘a rule or standard that the employee could reasonably be expected to be aware of’. Decision makers should apply common sense values when assessing potential misconduct.

Volkswagen Group South Africa (PTY) Limited v National Union of Metalworkers of South Africa (NUMSA) and Others (PR69/20) [2022] ZALCPE 16 (1 July 2022)

Source: Worklaw July 2022

Edited by Sarah Christie