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R146 700 paid to an employee guilty of misconduct! Don't make this one mistake...

by , 11 July 2014
It's your worst nightmare! You have a water-tight case. You've got all your proof the employee's guilty, but you make one silly mistake. And now you have to pay a guilty employee. And to add insult to injury, you now have to take the employee back too.

Find out what Traffic Violation Services did wrong so you don't end up in their shoes, paying a guilty employee.

The case: Elias vs Traffic Violation Solutions (Pty) Ltd [2010] 8 BALR 838 (CCMA)
 
Traffic Violation Solutions (Pty) Ltd provides speed cameras for law enforcement on public roads. It helps municipalities operate the cameras on a contract basis.
 
Mr Elias was the operations director in Kimberley. They dismissed him after finding him guilty on various counts of misconduct. He was guilty of the following:
-          Competing with the company's business;
-          Failing to bring a potential contract to the company's attention;
-          Defaming and undermining the CEO, Mr Becker;
-          Accusing the CEO of racism; and
-          Disclosing confidential information.
 
Elias referred a dispute to the CCMA. It wasn't resolved and went to arbitration. He said he wasn't guilty of the charges. He also said it was procedurally unfair because the presiding officer was biased. Keep reading...

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The Commissioner found Elias was guilty on some of the charges. But, he didn't find Elias guilty of disclosing confidential information or failing to bring a contract to the employer's attention. In line with the company's disciplinary code, dismissal was the right action for the offence.
 
But the Commissioner found problems with dismissal as a sanction.
 
He said that Becker didn't testify that Elias broke the trust at the enquiry. On the charge of defaming and undermining Becker's authority, the Commissioner looked at the work environment to see if firing him was fair. He said there wasn't unity in the company. There was an air that employees believe they can express their views, regardless of the outcome. He said there wasn't any proof that Elias had been disloyal when performing his duties. He also he didn't neglect the projects assigned to him. He agreed that Elias using contracts for his own benefit was a breach of trust.
 
But, because Traffic Violation Services only took action three years after they found out about the misconduct, it didn't see the offence as serious!
 
Make sure your evidence is enough to warrant dismissal
 
The Commissioner said that looking at the evidence he couldn't confirm that dismissal was fair. Looking at procedural fairness, the Commissioner said that if he did accept Elias's argument about lawyer's chairing disciplinary hearings on behalf of their clients, no employer would be able to assign its own employees to chair hearings.
 
Mr Levin, the company's labour lawyer, chaired the hearing. There was no evidence to Elias's claim that Becker instructed Levin to dismiss him or that Levin was biased. So, the dismissal was procedurally fair.
 
The judgement:
 
The Commissioner found the dismissal to be substantively unfair and procedurally fair. So, while the company knew what it was doing when it came to the procedure, it still had to pay Elias R146 700. All because it's reasons for firing him weren't fair!
 

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