A senior employee’s dismissal for gross misconduct, gross insubordination and gross dishonesty was found to be substantially and procedurally fair during an arbitration hearing before a CCMA commissioner. Moorddrift Dairy (Pty) Ltd v Manyise (GATW1/2023) 

This case was referred to the CCMA for arbitration after the matter could not be resolved in a prior conciliation/arbitration hearing.

The applicant was employed as a depot manager at a dairy from 2013 to 2022. His contract was terminated after a disciplinary hearing during which he was charged with gross insubordination, gross negligence, gross dishonesty and gross misconduct. The “gross” nature of these charges is defined as the degree being extreme.

The dishonesty involved the payment of a relatively large sum of money, about R70 000 over a period of three months, as “casual wages” to employees who were already formally employed and not eligible for casual wages of any kind. The employees’ time sheets reflected that they had been paid for working their regular hours and also paid casual wages for the same hours on the same day, essentially, they had been double-paid.

A meeting was held during which all managers were firmly instructed to reduce overtime and casual hours as the company would not be paying any more overtime, due to financial constraints. The applicant failed to communicate this to his staff, which resulted in employees refusing to work on a certain day.

The applicant had also created a “slush fund” by selling expired dairy products to a local pig farmer. This money was used for loans to employees and for other unauthorised expenditures. The applicant claimed that the CEO was aware of this fund, and that it was managed by the HR manager, which they denied.

The respondent argued that the applicant had been dismissed due to all these actions amounting to a breach of good faith and basically a breakdown of the trust relationship between the employer and employee. This breach of trust is made more serious due to the managerial role played by the applicant. He was a depot manager earning approximately R30 000 per month, not merely a general worker.

The arbitrator referred to multiple prior court rulings and relevant passages from law books in order to clarify the nature and import of the somewhat nebulous concepts addressed during the hearing. For example, “insubordination” is defined as not merely impoliteness, but the refusal to comply with reasonable lawful requests. The “gross” nature of the insubordination stems from the action having been performed defiantly, as a direct challenge to the authority of the employer, or repeatedly, or in such a way that it causes harm to the company. “Gross negligence” can be defined as not acting in the best interests of the company, as is reasonably to be expected from senior employees.

“Gross dishonesty” implies a deceptive action which does harm to the company, and although dishonesty does not automatically carry the “capital punishment” of dismissal, in this case, the dishonesty involved large sums of money and resulted in a loss for the company.

The arbitrator commented that the respondent brought multiple credible witnesses to the table, their testimonies corroborated one another, and their evidence against the applicant was irrefutable. The applicant brought a witness who added nothing of substance to the proceedings, and all his defences were simply statements of denial of any wrongdoing on his part. The arbitrator observed that the applicant would do well to learn and understand that this was not a criminal trial, where he was to be proven guilty of any one act beyond reasonable doubt, but that the standard for the assessment of the facts was the balance of probabilities.

The applicant showed no remorse for any of his misconduct. The arbitrator concluded that as he was well trained and seemed highly capable, more training would be of no use to him. The issue was not his competence, but his attitude and behaviour.

The arbitrator found that the dismissal of the applicant had been substantially and procedurally fair.

Submitted by by Labour Guide