Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment after he professed his love for a receptionist.
The disciplinary hearing was chaired by another senior commissioner who dismissed the accused commissioner, who then referred an unfair dismissal dispute to the CCMA. The arbitrator found that the employee’s conduct merely constituted the making of inappropriate sexual advances and not sexual harassment because the receptionist had not indicated that the employee’s behaviour was unwelcome. He therefore replaced the dismissal with a final warning. This was despite having found the employee to have lied under oath at the hearing.
The CCMA, in its capacity as employer, applied to the Labour Court on review. The Court duly overturned the arbitrator’s decision. On appeal the Labour Appeal Court (LAC) decided that the dismissal had been unfair because there was no evidence that the employment relationship had either been materially damaged or had become intolerable. On the contrary, the employer had allowed the employee to continue working for five months after his conduct had been reported.
This outcome is a lesson to all employers not to delay the implementation of discipline for too long lest the CCMA finding that the employment relationship has not been irrevocably destroyed.
In the light of the above employers should ideally be able to prove that the employee has made continued employment relationship intolerable; and should ensure fairness in implementing discipline.
This is a difficult and dangerous tightrope to walk. Employers should therefore get advice from a reputable labour law expert in order to decide how to deal with such matters. This will help avoid the employer falling off the tight rope hung between the EEA and the LRA.
If CCMA commissioners cannot agree amongst themselves as to what is and is not fair then lay employers and managers cannot expect to be able to make such judgements on their own. One factor that could possibly have affected the judgement of the CCMA in the Maepe case is that the CCMA, as employer, may have been too close to the case to be able to come to a consistent decision. Employers should therefore realise that the use of an external expert is important in ensuring that a proper legal and objective decision is taken.
