Is dismissal still appropriate where an employer offered an alternative sanction short of dismissal and the employer fails to accept the same

Posted: February 23, 2010 in Uncategorized

This question was raised in Department of Labour v General Public Service Sectoral Bargaining Council and Others (PA3/08).  In casu the Department of Labour found two employees guilty of sexual harassment and afforded them the opportunity to accept a three month unpaid suspension as opposed to dismissal.  The employees rejected this offer and where consequently dismissed.  The Bargaining Council upheld the sanction and the employees proceed on review to the Labour Court.

The Labour Court in turn found that as the Department of Labour made an offer of alternative sanction, the only inference that can be drawn is that the ‘[Department of Labour] decided that [the employees] be kept in its employ’ as had the employees decided to accept the alternative sanction “they would certainly have been kept in the employ”.  On this basis the Labour Court concluded that the sanction in the nature of a sanction which ‘a reasonable employer would not have in the circumstances have imposed it’ and ruled that the employees be re-employed. (at §22).

The Labour Appeal Court (per Tlaletsi AJA) however rejected the Labour Court’s argument and inter alia found that: –

(1) “The argument that because the appellant considered an alternative sanction in compliance with the Disciplinary Code, it meant that the employment relationship itself was not intolerable and that the appellant showed some trust on the respondents is in my view, illogical. One of the answers to this argument is that the alternative sanction itself was a form of punishment which had its own conditions which would, if successful, repair the respondents’ relationship with the appellant. The respondents were required to subject themselves to suspension from duty for a period of three months without pay. It is perhaps for this reason why the collective agreement provided that the employee who is to be suspended for a period without remuneration has to consent to such an alternative sanction as a measure of cooperation. It is clear from the judgment of the Labour Court that these factors were not considered when it made an order to review and correct the award rendered by the commissioner” (at §34);

(2) When the respondents rejected the offer of a sanction short of dismissal, they were quite aware that they were facing dismissal as they were warned already by the employer. They made an election not to accept an alternative dismissal. It is only fair that they be bound by their election and the consequences flowing there from. Their decision left the appellant with no option but to impose the sanction recommended by the chairperson of the disciplinary enquiries. Their rejection of the offer was unreasonable when regard is had to the circumstances of this matter. An offer of alternative sanction could not have meant that the dismissal of the respondents could never have been fair because of the seriousness of the appellant’s misconduct (at §35);

(3) However, had the Labour Court been alive to the fact that the appellant was prohibited from imposing the alternative sanction without the consent of the respondent it would not, in my view, have held that the respondents should not have been dismissed. This is because the conclusion by the Labour Court that the dismissal was harsh was only based on the fact that the respondent had considered an alternative sanction which would still have kept the respondent in employment and not on the fact that the misconduct itself did not warrant dismissal (at §36).

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