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Fair is fair; or is it?

Article by lvan lsraelstam, Chief Executive of Labour Law Management Consulting

In the case of Goodyear SA (Pty) Ltd vs CCMA and others (as reported in People Dynamics 36, January 2004) the Labour Appeal Court had to deal with an alleged case of unfair dismissal. According to the report the employee was supposed to have begun his shift at 23:00. However, at approximately 18:00, five hours before he was supposed to start work, he was woken by his colleagues. They had been sent by the employer to ask the employee to start work earlier due to absenteeism on the earlier shift.

Although the employee was under the influence of alcohol he agreed to this request and began work early. However, due to his intoxicated condition while on duty, he was disciplined. As he already had a final warning for a similar infringement he was fired. He referred an unfair dismissal dispute to the CCMA. At arbitration the commissioner held that the dismissal was unfair, not because intoxication at work is acceptable but because the employee had been doing the employer a favour by going on duty early. The arbitrator reinstated the employee and ordered the employer to give him six months’ back pay.

The employer took this award on review to the Labour Court which upheld the CCMA’s decision. Goodyear took the matter further to the Labour Appeal Court on the grounds that the arbitrator’s decision was irrational and unjustifiable. The Court agreed that reporting for duty in an intoxicated state was wrong but disagreed that dismissal was the appropriate penalty under the circumstances of this particular case. ‘Subtle pressure’ to begin work earlier and ‘his befuddled state’ due to his condition ‘had induced him to agree’ to go to work. This was a valid mitigating factor that the CCMA was entitled and required to take into account. (A mitigating factor is one that may reduce the severity of the penalty.) The Court therefore found against Goodyear, upheld the reinstatement and ordered the employer to pay the employee’s legal costs.

In this case the CCMA and two Courts found the dismissal to be unfair because:

  • the employee’s right to have a valid mitigating factor considered had been infringed by the employer, and
  • as a result the penalty arrived at was too harsh and inappropriate in this particular case.

An employer’s lack of experience in legal matters combined with his/her anger at the employee frequently results in decisions seen by the courts as unfair. The employer’s access to someone with the right expertise and ability to analyse the situation clinically and without emotion is therefore essential.

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