Volksrust Recorder - Column/Rubrieke10 Recorder 10 June 2016

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With Jacques de Villiers

Volksrust SemeBusiness ChamberOnus of Proof and Employer’sObligation during Dismissal DisputesBy Magate Phala

For more information, please callWillem Hussel-mann - 082 415 7725Freddie Kapp - 017 735 4444Ashraf Moola - 082 588 5515

When an employee who has beendischarged for misconduct declares an unfairdismissal dispute at the CCMA or anyrelevant Bargaining Council, the employeemust establish the existence of the dismissal.The employer is then required not only toprove that the dismissal was procedurallyand substantively fair but also to show thatthe affected sanction of dismissal was anappropriate penalty in light of thecircumstances of the employee’stransgression and all the relevant facts intheir totality.In Edcon Ltd v Pillemer NO & others [2010]1 BLLR 1 (SCA), the court emphasised thatin a dismissal dispute, the employer mustlead evidence regarding the appropriatenessof the dismissal as a sanction.Section 192 of the Labour Relations Act, 66of 1995 provides thatIn any proceedings concerning anydismissal, the employee must establish theexistence of the dismissal, and if theexistence of the dismissal is established, theemployer must prove that the dismissal isfair.Section 188 (1) of the Labour Relations Actsupra further provides that a dismissal thatis not automatically unfair will be renderedunfair if the employer fails to prove:(a) That the reason for dismissal is a fair

reason and (i) That it is related to the employee’sconduct or capacity, or (ii) That it is based on the employer’soperational requirements and that (b) The dismissal was effected by a fairprocedure.Any person considering whether or not thereason for dismissal is a fair reason orwhether or not the dismissal was effectedby a fair procedure must take into accountthe Code of Good Practice: Dismissal.It is not a given that if the employee is foundguilty of misconduct that a sanction ofdismissal should be applied. Employershave a further duty to lead evidence showingthat the employee by his conduct hasbreached the trust relationship. Moreover,in some cases, where the employee has beenfound guilty of dishonesty, employers mayargue before the Commissioner that byapplying the principle of Res Ipsa Loquiturand relevant case law that dismissal is theonly suitable penalty.In De Beers Consolidated Mines Ltd vCCMA & others [2000] 9 BLLR 995 (LAC) atpara 22, the Court, per Conradie JA, held the

following regarding risk management:‘Dismissal is not an expression of moraloutrage; much less is it an act of vengeance.It is, or should be, a sensible operationalresponse to risk management in theparticular enterprise. That is whysupermarket shelf packers who steal smallitems are routinely dismissed. Theirdismissal has little to do with society’smoral opprobrium of a minor theft; it haseverything to do with the operationalrequirements of the employer’s enterprise.’In Hulett Aluminium (Pty) Ltd v BargainingCouncil for the Metal Industry and Others[2008] 3 BLLR 241 (LC) at para 42 that:‘the presence of dishonesty tilts the scalesto an extent that even the strongestmitigating factors, like long service and aclean record of discipline are likely to haveminimal impact on the sanction to beimposed. In other words whatever theamount of mitigation, the relationship isunlikely to be restored once dishonesty hasbeen established in particular in a casewhere the employee shows no remorse. Thereason for this is that there is a highpremium placed on honesty becauseconduct that involves corruption by theemployee damages the trust relationshipwhich underpins the essence of theemployment relationship.’In Kalik v Truworths (Gateway) and Others[2008] 1 BLLR (LC), the Labour Court heldthat an employment relationship ‘…brokendown as a result of an act of dishonesty cannever be restored by whatever amount ofmitigation. The underlying reason for thisapproach is that an employer cannot beexpected to keep dishonest workers in his/her employ. The other reason for this is tosend an unequivocal message to otheremployees that dishonesty will not betolerated.’In Miyambo v CCMA & others [2010] 10BLLR 1017 (LAC), the court held thatbusiness risk is predominantly based on thetrustworthiness of company employees andthat the accumulation of individual breachesof trust has economic repercussions.Written by Magate Phala, who specialisesin Labour Law, and writes in his privatecapacity. For more information, kindlycontact Magate Phala atmagatephala@gmail.com

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JOKInsparationalChoiceOnly choice could set you free in all theburdens you are facing. The time is now tomake the right choice that will make youproud of yourself. There are things in lifethat will make you proud when your choiceslet your faith defeat all the impossible inorder to be possible. Believe in everythingyou do. God will give you blessings when

you have the courage to achieve beyondlimits. You are defined as a successful humanbeing in the world therefore you oweyourself a big favour to ensure that you excelin everything you do. Do what you do best,don’t look back to regret the choice you tookabout your future.~JOK~

I’m sure like me, you’ve watched schoolboyrugby.It’s loads of fun. There are enough vignettesgoing on both on and off the field to keepeveryone interested. Par for the course: Red-faced coaches, bombastic fathers trying torecapture their manhood and youth byberating the referee, war cries, motherscringing at every tackle that their littledarlings have to endure, oranges at half-time,new-boys running around serving the everywhim of their old boys, the non-joinerssneaking off for a smoke and a scrum at thetuck shop for Chelsea Buns.And, of course, the whole point of thisexercise is for each team to try its best to win... at all costs.It is the “at all costs” bit that causes me topause.I’ve seen the size of some of the forwards -they could play for a provincial side. Thelocker-room steroids run contributing to theirbulk, no doubt.I’ve heard that schools ‘buy’ players fromother schools to join their first teams.Astronomical sums are paid to get the bestcoaches on-board.I don’t believe that this win at all costs, byhook or by crook culture is at all helpful toproduce upstanding young adults.This win at all costs culture is not just thedomain of rugby, of course. Primary schoolchildren have their speeches written byprofessional speech writers so that they canwin their competitions. When a mothercomplained about this to a headmaster hesaid that “everyone is doing it” and that sheneeds to “get with the programme”. Jesusweeps! First year university students makeextra money by writing papers and doingprojects for high school pupils.The character of our children reveals thecharacter of our parents, headmasters andteachers. When we condone this practice asparents and teachers, what are we reallytelling our children? Hey, it’s ok to cheat. It’sok to buy resources to help us because we’retoo lazy or stupid to do the task ourselves.It’s ok to take short cuts and not developour mental and physical abilities. It’s not ok

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Cheat Nationfor a teacher to discipline us fortransgressions - mommy and daddy will bein the headmaster’s office quicker than youcan say “detention”. It’s ok to buy or bullyour way out of any situation.Surely the point is actually to develop andreveal character and not to win? If you win,that’s a bonus. The point is not aboutwinning or losing but how you play the game.Surely the point is to teach our children thevalue of hard work, dedication, grit,determination, teamwork, collaboration, howto deal with the disappointment of losing,how to get off your knees after a devastatingfailure, how to have each other’s back,honesty, integrity, fair play, goodsportsmanship and how to set others up forsuccess. Surely the point is to make ourchildren better human beings? Humans thatactually give a damn about more than theirself-interest.Because the reality is that in the real world a‘winner takes all’ attitude is a recipe fordisaster. We’ve seen it in this beautifulcountry of ours. Our win at all costs culturehas created the Frankenstein monster mostof us have become - wreaking havoc,destruction and chaos wherever we go. Ourquest for self-interest through short cutting,lying and cheating has almost brought thiscountry to its knees. And, we may be on ourknees sooner than we think.Maybe because I still have a bit of a romanticstreak in me that is an island in the sea ofcynicism that is my life, I believe that we canbecome better human beings and usefulcitizens.But it will have to start with the parents andthe schools who have to say “no more”. Nomore do we condone cheating, lying, andbuying our way out of trouble. No more. Wewant to develop children with character,courage, and honour. We want our childrento help others to succeed because when theydo that, everyone succeeds.