Apologise and save your job

Oct 30, 2019

It happens often that employers are faced with an employee at a disciplinary enquiry who vehemently denies the allegations against him/her or persistently denies any wrongdoing, even though the facts and evidence prove the contrary.

In the case of Gordon Timothy v Nampak Corrugated Container the Labour Appeal Court (LAC) a strong warning was send to employees to admit guilt and show remorse instead of dishonestly denying any wrongdoing.

In this case, Nampak’s employee telephoned a collection clerk at a firm of attorneys and misrepresented that he was an attorney acting for Nampak and the debtor. He demanded certain information regarding the debtor and was informed by the collection clerk that this was privileged information. Nampak’s employee became very aggressive and proceeded to abuse the collection clerk.

After a disciplinary hearing he was found guilty of bringing Nampak’s name into disrepute in that he acted dishonestly by misrepresenting himself as an attorney, and was dismissed.

He denied during the internal hearing and the subsequent arbitration at the CCMA that he had spoken to the collection clerk at all. He insisted that the allegations against him were lies and showed no remorse for his conduct.

The CCMA found that the dismissal was substantively unfair and ordered Nampak to reinstate the employee. Nampak successfully challenged the award in the Labour Court. Undeterred, and still without remorse, the employee appealed against the judgment to the Labour Appeal Court (LAC) and lost.

The Court was highly critical of the employee’s ongoing denial of his dishonesty and failure to accept wrongdoing. The Court concluded that where there is nothing more than an aggressive denial and a perpetuation of dishonesty, it is extremely difficult to justify a progressive disciplinary sanction, particularly in a case where the dishonesty is serious. Had the employee shown remorse and admitted wrongdoing from the beginning, a more appropriate sanction may have been to correct his behaviour through corrective or progressive discipline. This involves correcting behaviour through a system of graduated disciplinary measures such as counselling and warnings.

Source: Bregman Moodley

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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