Final means final
Website Editor • June 7, 2019
Employers may rely on final written warnings issued to employees to impose a sanction of dismissal for repeated misconduct for the same or similar offence. The whole purpose of a final warning is to draw a line in the sand that any further misconduct of the same or similar nature will be visited with the sanction of dismissal.
In the matter of Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41 (5 March 2019), the court had to consider whether the commissioner’s decision upholding a sanction of dismissal relying on a final written warning, in circumstances where the employee challenged the validity of the final written warning, was justified.
The court held that employees may not challenge a final written warning in a dismissal dispute in the absence of having challenged the final written warning. If an employee is unhappy with an employer issuing a final written warning, then the employee must challenge it by referring an unfair labour practice dispute to the CCMA. It is therefore impermissible to dispute the validity of a final written warning in an unfair dismissal dispute.
The only challenges that may be made in respect of a final written warning in an unfair dismissal dispute are whether the final written warning was indeed issued, whether it was for a same or similar offence or whether such final written warning is still valid.
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In African Meat Industry and Allied Trade Union (AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd (D1050/2019) [2023] ZALCD 17 (17 October 2023) , the Labour Court was called upon to consider a diverse range of issues that arose on account of a protected strike that turned violent. In particular, in this judgment the Court dealt with the following issues: Whether it is possible for a protected strike to become “unprotected” and if so, what is required for a strike to lose its protection, The dismissal of employees on the basis of: unlawful conduct during the course of a strike; derivative misconduct; and contempt of a Court order and non-compliance with picketing rules and the Code of Good Practice on Picketing ( “Code” ). The appropriate relief in respect of an unfair dismissal of “striking” employees.
Can the unpleasant consequences of the exercise of managerial prerogative be regarded as harassment?
In La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (8 September 2023) , the Labour Court was called upon to shed some light on the intricate legal concepts involving harassment as a form of unfair discrimination within the meaning of section 6(3) of the Employment Equity Act 55 of 1998 (“ EEA ”). The Applicant in this matter, Ms Gabriella La Foy, was formerly employed as a Director-General by the Department of Justice and Constitutional Development (“ DoJCD ”). Ms La Foy had referred a claim of unfair discrimination to the Labour Court, claiming that she experienced harassment during her tenure at the DoJCD. Ms La Foy’s claim of unfair discrimination was premised on, among other things, the following allegations: Her branch that she was managing within the DoCJD was grappling with capacity issues due to staff shortages. She subsequently completed a request to fill up vacant positions which she considered critical and she had provided a motivation outlining the necessity of these positions. However, her request was declined, which she perceived as harassment. Several complaints were made against Ms La Foy, resulting in her receiving “audi alteram partem” (tell your side of the story) letters. She contended that the issued letters amounted to further harassment. While the DoCJD investigated the complaints against her, Ms La Foy was transferred to another position pending the finalisation of the investigation. She viewed this transfer as a demotion and an additional form of harassment. Over time, Ms La Foy felt marginalised, believing that her duties were being unfairly stripped away. She also claimed that she was denied international trip opportunities, which were part of her responsibilities, as well as leave requests being denied. The above issues culminated in Ms La Foy first referring a dispute to the Commission for Conciliation, Mediation and Arbitration, and ultimately, the Labour Court, in which she claimed that the alleged harassment that she had experienced constituted unfair discrimination on arbitrary grounds.
In Maasdorp v University of the Free State (JS647/22) (12 October 2023), the Labour Court was called upon to consider the possible fairness of a dismissal arising from the implementation of a COVID-19 vaccination policy (“Policy”). In this regard, the Applicant in the matter ( “Mr Maasdorp” ) claimed that his dismissal from the Respondent ( “UFS” ), resulting from his failure to comply with the Policy, was automatically unfair. Ultimately, the Court’s consideration of Mr Maasdorp’s claim was within the context of it determining a condonation application for the late filing of the claim. While the Court considered the other required factors in relation to Mr Maasdorp’s condonation application, for purposes of this article the focus will be on only two of those factors, namely the prospects of success and the importance of the case.
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In African Meat Industry and Allied Trade Union (AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd (D1050/2019) [2023] ZALCD 17 (17 October 2023) , the Labour Court was called upon to consider a diverse range of issues that arose on account of a protected strike that turned violent. In particular, in this judgment the Court dealt with the following issues: Whether it is possible for a protected strike to become “unprotected” and if so, what is required for a strike to lose its protection, The dismissal of employees on the basis of: unlawful conduct during the course of a strike; derivative misconduct; and contempt of a Court order and non-compliance with picketing rules and the Code of Good Practice on Picketing ( “Code” ). The appropriate relief in respect of an unfair dismissal of “striking” employees.
Can the unpleasant consequences of the exercise of managerial prerogative be regarded as harassment?
In La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (8 September 2023) , the Labour Court was called upon to shed some light on the intricate legal concepts involving harassment as a form of unfair discrimination within the meaning of section 6(3) of the Employment Equity Act 55 of 1998 (“ EEA ”). The Applicant in this matter, Ms Gabriella La Foy, was formerly employed as a Director-General by the Department of Justice and Constitutional Development (“ DoJCD ”). Ms La Foy had referred a claim of unfair discrimination to the Labour Court, claiming that she experienced harassment during her tenure at the DoJCD. Ms La Foy’s claim of unfair discrimination was premised on, among other things, the following allegations: Her branch that she was managing within the DoCJD was grappling with capacity issues due to staff shortages. She subsequently completed a request to fill up vacant positions which she considered critical and she had provided a motivation outlining the necessity of these positions. However, her request was declined, which she perceived as harassment. Several complaints were made against Ms La Foy, resulting in her receiving “audi alteram partem” (tell your side of the story) letters. She contended that the issued letters amounted to further harassment. While the DoCJD investigated the complaints against her, Ms La Foy was transferred to another position pending the finalisation of the investigation. She viewed this transfer as a demotion and an additional form of harassment. Over time, Ms La Foy felt marginalised, believing that her duties were being unfairly stripped away. She also claimed that she was denied international trip opportunities, which were part of her responsibilities, as well as leave requests being denied. The above issues culminated in Ms La Foy first referring a dispute to the Commission for Conciliation, Mediation and Arbitration, and ultimately, the Labour Court, in which she claimed that the alleged harassment that she had experienced constituted unfair discrimination on arbitrary grounds.