How does the employer deal with suspected employee dishonesty in the workplace?
If the two questions are carefully considered, they appear to be similar, but they are actually two different questions.
The first question is about an employee who presents dishonest evidence or submitting false evidence at a disciplinary hearing and the second question is about an employee who commits dishonesty in the workplace during the course of his/her employment or performing his/her job. Both questions raise the same form of misconduct, i.e. dishonesty, but in a different context.
This article is about the first question, dishonest witnesses at a disciplinary hearing. The second question requires the normal internal disciplinary process involving conducting a proper workplace investigation to establish whether there is prima facie evidence to institute disciplinary proceedings against an employee for alleged dishonesty.
Dishonesty in the workplace can take various forms, including theft of the employer’s property (or that of fellow employees), fraudulent conduct, such as submitting incorrect time sheets, lying to managers and other unethical conduct.
However, an employee lying during the course of a disciplinary hearing (or a similar type of investigation) has not received much attention in South African labour courts. Another legal term for willfully telling an untruth or making a misrepresentation, is perjury.
In the case of the University of KwaZulu-Natal v Pillay and Others, Mr Pillay was employed as the Chief Financial Officer of the University of KwaZulu-Natal (“UKZN”). Shortly after Mr Pillay received a Master’s degree in commerce from the university, the vice-chancellor of UKZN received information from an anonymous source alleging certain irregularities related to Mr Pillay being awarded the degree. An internal committee was established to investigate the matter. It reported that the allegation had been made that Mr Pillay had been involved in an intimate relationship with one of the examiners and that he had given the examiner an amount of R80,000. Further developments led to a second investigation chaired by an independent chairperson. During the course of this second inquiry, Mr Pillay gave evidence and denied the allegations made against him. The second inquiry rejected this evidence and found that Mr Pillay had been involved in an intimate relationship with the examiner and had paid her the amount of R80,000. In effect, the second inquiry found that Mr Pillay had lied to it.
Mr Pillay was then charged with the disciplinary offence of lying to the second inquiry. A disciplinary hearing was held and Mr Pillay was found guilty of dishonesty and dismissed. Mr Pillay then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The CCMA found the dismissal to be fair and that it was an appropriate sanction for the dishonest conduct.
On review, the Labour Court accepted the commissioner’s conclusion that the trust relationship had been irretrievably damaged and that dismissal was an appropriate and reasonable sanction. The issue as to whether the dismissal was procedurally unfair was eventually considered by the Labour Appeal Court and, during the course of its decision, the court also accepted that dismissal had been an appropriate disciplinary sanction.
In Mr Pillay’s case, the courts were dealing with the conduct of a very senior employee where the relationship of trust and confidence could easily be seen as being destroyed as a result of his dishonesty.
In the case of Banking Insurance Finance & Allied Workers Union & Another v Mutual & Federal Insurance Company Ltd the dismissal of a shop steward was dealt with, who, while representing an employee at a CCMA arbitration, had lied to the CCMA commissioner during the course of the arbitration. The shop steward had argued that the dismissal of the employee he was representing was procedurally unfair because the chairperson of the disciplinary inquiry had unreasonably failed to postpone the hearing. The hearing had in fact been postponed.
The shop steward claimed that his dismissal had been automatically unfair because he was dismissed for exercising his right as a shop steward to represent the union’s members. The Labour Court found that the dismissal was fair. On appeal, the Labour Appeal Court agreed with this approach. It pointed out that a court should be slow to confirm the dismissal of an employee whose conduct at a disciplinary inquiry or arbitration has, as a result of immaturity, inexperience, over-zealousness, exuberance, or an inability to maintain a certain detachment, fallen short of the standard that could reasonably have been expected. It also stated that an employee representing a fellow employee has the right, and indeed the duty, to do so fearlessly to the best of his or her ability.
But the court went on to conclude that, in this case, the shop steward had been devious, unscrupulous and deceitful. It came to the conclusion that the shop steward’s dishonesty was inconsistent with his employment as an underwriting clerk in a position of trust. The dominant reason for his dismissal was his dishonest conduct and not the fact that he represented a union member at an arbitration proceeding.
On the facts of the Pillay case, the decision was clearly self-evident – the dismissal of a senior employee who lied during the course of an inquiry was the appropriate sanction. In the case where a shop steward was dismissed for dishonesty while executing his duties, there was a thin line between the shop steward potentially being victimised for representing a member of a union and serving the employer honestly and faithfully as an employee. In essence, a shop steward served two masters. One was the duty to represent employees and the other was of being an honest employee towards the employer. Every employee has the right to participate in union activity, however with this right comes a responsibility in respect of the manner in which they participate. The two duties of a shop steward overlap and if a shop steward is caught abusing the one duty of representing employees by being deceitful and dishonest, he or she cannot cry victimisation upon their dismissal.
In summary, therefore, should it be found or established that an employee as a witness in an internal disciplinary hearing wilfully and/or knowingly presented false evidence or misrepresented the truth, not only impacts negatively on the credibility of the employee as a witness, but could lead to the employee’s fair dismissal following due process.