05/07/2023
There is a very clear line between and (PWP). Misconduct requires fault on the part of the employee i.e. intent or negligence whereas PWP is brought about by circumstances beyond the employee’s control. Misconduct attracts and PWP attracts training, guidance, support, time or counselling. Mistake one for the other and you will pay the price in court or at the .
Take Landsec in Landsec and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 819/07) [2009] ZALC 12 (29 January 2009), for example: Theo worked for Landsec as a caretaker of the building “Toronto House” for nine months when he was charged with poor work performance and having a bad attitude towards his work, and dismissed.
At the disciplinary hearing, Landsec threw everything, including the kitchen sink, at Theo and accused him of consuming alcohol while on duty, subletting rooms in the building, accommodating illegal immigrants and persons who were not allowed in the building, accommodating people in the basement for financial gain, failing to distribute pamphlets warning tenants about the presence of rat poison, failing to attend to tenants complaints, and subletting his room to another person. Laying it on even thicker, Landsec said that Theo also failed in his duties as caretaker in that he failed to open the security access gate to the building for the cleaners, thereby causing the building to remain dirty and failed to patrol and identify problems in the building. Various tenants had complained about Theo not being willing to assist them when requested to do so in his role as caretaker.
Enter the CCMA. The Commissioner lambasted Landsec for charging Theo with PWP but then leading evidence relating to misconduct and dismissing him for that reason. This was . The Commissioner took the position that the charges proferred against Theo related to and not conduct. Consequently, Landsec implemented the wrong procedure in dealing with Theo.
On review, the LC agreed with the Commissioner that Theo’s dismissal was both procedurally and substantively unfair. The Court stated that the requirements and the evidence to be adduced to show that the dismissal for misconduct was procedurally fair is different to what has to be shown in the case of dismissal for . Landsec was ordered to reinstate Theo without loss of income or any benefit, nearly four years after his dismissal!
Don't be Landsec. Avoid the pitfalls and register for our online Workshop: Poor Work Performance vs Misconduct on Friday, 22 September 2023 from 9 am - 12 pm
Who should attend this workshop:
HR professionals, IR professionals, Labour law practitioners, Line managers, Supervisors, Trade union representatives, etc.
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