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Beware the phantom
redundancy
By Tony Healy
If an employer
loses a retrenchment case at the CCMA or Labour Court, it’s normally
because (1) the selection criteria were subjective, (2) there was no consultation,
and if there was, it was not a bona fide consultation process, or
(3) alternative employment options or bumping were not explored.
A further reason
why employers lose retrenchment cases on occasion is the scenario wherein
a position which is not redundant, is said to be redundant; let’s call it
the ‘phantom redundancy’.
The modus
operandi utilised in the phantom redundancy frequently occurs when an
employer seeks to dismiss an employee for X reason, but has insufficient
grounds to do so, and elects rather to deem the employee’s position to be
redundant to justify the retrenchment (dismissal) of the employee.
In the Durban
Labour Court case of Goddard v Metcash Trading Africa (Pty) Ltd
Case No. D581/2005, the applicant (a Divisional Training Manager with
19 years service) argued that he had been induced to sign a settlement
agreement terminable on payment of a severance package. In
particular, the applicant submitted that he had essentially been duped by
the respondent into signing the (retrenchment) settlement agreement as
the respondent had led him to believe that his position had become
redundant.
It was the
applicant’s case that he “was mislead about the fact that his post was
redundant and that this information had led him to negotiating severance
package and to sign the settlement agreement”.
A few weeks after
the applicant’s termination, the respondent appointed new training
manager for KZN which, in an e-mail to staff, confirmed that the new
appointee replaces the applicant. The applicant then referred an
unfair retrenchment case to the CCMA on grounds that “I was retrenched
but I don’t believe there existed an operational requirement because
someone was appointed in my position after I left”.
Even though the
respondent argued that the applicant signed the settlement agreement in
light of preceding incompatibility and poor work performance issues, the
Court held that the applicant had been “induced to believe that his
post was redundant and that that was the reason why he had signed the agreement”.
Because of this,
the settlement agreement was set aside and the applicant was reinstated.
Can disciplinary
hearings be reheard?
By Andre de Beer:
Senior Consultant TH&A Cape Town
On occasion, employers are perturbed about the outcome
of one of their own internal disciplinary hearings and sense that they
are helpless to do anything about it. This is all the more
frustrating in that, erroneously, most employer disciplinary procedures
and policies do not make provision for a ‘management’ appeal or review
process.
A chairperson may
pass an ill-considered verdict or impose an inappropriate sanction which
could, for example, be too lenient given the severity of the misconduct
in question and the prevailing mitigating and aggravating circumstances.
The question which
arises is may an employer in such circumstances re-hear such a case?
This very question
was addressed in a refreshingly prudent manner in the recent Labour
Appeal Court (LAC) matter of Branford v Metrorail Services (Durban)
& Others [DA19/2002]. In particular, this case dealt
with whether an employee may be disciplined more than once for the same
offence.
The applicant, a
traffic control officer with 21 years service, was originally issued with
a verbal warning for making a number of fraudulent petty cash claims
amounting to R834.00. Subsequent thereto, the respondent initiated
a disciplinary hearing at which the applicant was formally charged with
fraud, forgery and dishonesty.
The LAC majority
judgment held that in the circumstances “ … it would be manifestly unfair
for the company to be saddled with a quick, ill-informed and incorrect
decision of its employee who misconceived the seriousness of the matter
and hurriedly took an inappropriate decision leading to an equally
inappropriate penalty”.
Commenting
further, the judgment submitted that it is incorrect to conclude that the
holding of a ‘second enquiry’ per se renders the outcome of the
second enquiry unfair.
In essence, the
LAC held that second disciplinary hearings for the same offence may be
convened if it is fair to do so in the circumstances, and not necessarily
only in exceptional circumstances.
This makes good
sense, for in the cut and thrust of the environment of a workplace,
disciplinary hearing outcomes evolve which are over hasty and
“ill-considered”. Employees and employers alike may be prejudiced
in such circumstances; however, whilst employees are entitled to appeal
in such circumstances, employers are invariably immobilised.
It is quite right
that employers ought also to have recourse when a hearing verdict and/or
penalty evolves which is clearly wrong. The most appropriate manner
in which such an eventuality can be addressed by employers is to ensure
that the company disciplinary procedure makes clear and unambiguous
provision for management appeals.
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