Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The intolerability of the continuation of the employment relationship can be caused by misconduct other than dishonesty.
For instance, an employed could argue that an employee who sexually harassed a colleague severely damaged working relationships between employees and/or damaged the employer’s reputation. However, the employer must still prove that this damage was serious enough to make continued employment intolerable.
For example, 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 dismissed due to charges of sexual harassment and improper or disgraceful conduct against a receptionist.
The Labour Appeal Court (LAC) sided with the arbitrator who found the dismissal to be unfair because there was no evidence that the employment relationship had become intolerable. On the contrary, the employer had allowed the employee to continue working for five months after his conduct had been reported.
The outcome of this case warns employers not to delay discipline for too long because this can result in a finding that the employment relationship has not been irrevocably destroyed and that the dismissal is therefore unfair.
Persuading an arbitrator that the employment relationship has truly been destroyed is very difficult.
This is because:
- The modern day arbitrator is more and more likely to look for reasons to preserve the employee’s job.
- The concept of intolerability has at least as many subjective elements as it has objective elements. What the angry employer feels to be intolerable might not be seen in that light by an arbitrator who is more emotionally removed from the situation.
In the light of the above employers should:
- If they believe that the misconduct does merit dismissal, be able to set aside their anger and prove objectively that the employee has made continued employment relationship intolerable by his/her actions.
- Ensure that their charging officers and hearing chairpersons are given thorough and updated training by a reputable labour law expert. This training should include input on what types and quality of evidence might qualify to justify a claim of intolerable employment relationship.
- Get advice from a labour law expert before considering the setting up of a disciplinary hearing in order to ensure that this is justified.
- Consider outsourcing the chairing of the disciplinary hearing to a labour law expert in cases where the case is too hot to handle for internal management.