An employee was found guilty of dishonesty during his disciplinary hearing. He had claimed a call-out fee on two separate dates, which should have been paid as overtime as he was informed ahead of time that the work would be required, so, it did not constitute a call-out, and these two kinds of overtime are remunerated at different rates. While the procedural unfairness of his dismissal was upheld by the Labour Court, the substantive unfairness was reviewed and set aside, after it was found that the arbitrator ignored important evidence against the employee.

Aspen Pharmacare v National Bargaining Council for the Chemical Industry and Others (PR 196/20) [2023] ZALCPE 4 (29 March 2023)

The employee, a maintenance foreman for a pharmaceutical company, was informed by his line manager that he would be required to work overtime on two specific dates, to inspect a wash bay refurbishment and do whatever was necessary to ensure that the area would pass inspection.

He came in on the two days, a Sunday and a public holiday, and claimed a call-out fee for both days. When this incorrect billing was discovered, he was asked who had instructed him to come in and charge the work as a call-out. He stated that two employees of the company in a different department had asked him to come in, but this was not true, he had been instructed by his line manager. The line manager had not been aware that the call-out fee he was paying was in fact for the days that he himself had instructed his colleague to work overtime.

The employee in question referred a dispute of unfair dismissal to the CCMA, and was granted the award of unfair dismissal. However, upon review, the Labour Court found that the arbitrator did not pay attention to the piece of evidence which amounts to dishonesty concerning hours and pay.

The substantive unfairness of his dismissal, as determined by the arbitrator, was, however, found to be valid. He had only had 10 minutes to find an employee to support him at his disciplinary hearing as the colleague whom he had initially asked had been called away unexpectedly to participate in a strike. When he asked if he could have legal representation, he was interrupted by a human resources staff member and told that he could not. This prevented the chairperson from having a chance to consider the request. This did not afford him a fair disciplinary hearing, as the arbitrator correctly ascertained.

The employment relationship is based on trust, and when that trust has been broken, it can have a permanent detrimental effect and cause the breakdown of the relationship between employee and employer.

The facts of the matter, including incorrectly billing the company for a call-out rather than overtime in order to receive a higher hourly rate, and also changing his story part way through – first saying that the production department had called him out, then saying that his line manager had been the one to instruct him – amounted to dishonesty worthy of dismissal.

The Labour Court upheld the finding of the employee’s dismissal being procedurally unfair, but set aside the award of substantively unfair dismissal, with no order as to costs.

Written by the Labour Guide