The Labour Court of South Africa recently delivered an interesting judgment on 29 April 2024, in the case of SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2281/21) [2024] ZALCJHB 180 (29 April 2024). This case presents important lessons for employers regarding the fair treatment of employees during disciplinary processes and the importance of adhering to substantive and procedural fairness in handling a workplace dismissal.

Here are five important lessons employers can learn from this case:

1. Thorough & Fair Investigations are Crucial

In this case, Mr Wonder Dlamini was dismissed for allegedly unlawfully removing company property (lemon juice). However, the employer’s investigation was ultimately found to be flawed. The security guard’s suspicions, the subsequent search of Mr Dlamini’s bag, and the tasting of the bottle’s contents were conducted without his presence or consent, a significant breach of his Constitutional right to privacy and procedural fairness​​.

Lesson: Employers must ensure that any investigation into alleged misconduct is thorough, fair, and respectful of the employee’s rights. Conducting searches or tests in the employee’s absence can undermine the legitimacy of the investigation and may pose a procedural issue at a later stage.

2. Procedural Fairness in Disciplinary Action

The Court found that the procedural aspects of Mr Dlamini’s dismissal were mishandled. The tasting of the bottle’s contents, which was central to the allegation against him, was done without his involvement. This failure to involve the employee in critical parts of the investigation process led to a conclusion of substantive unfairness in the dismissal.

Lesson: It is imperative for employers to follow fair procedures when disciplining employees. This includes allowing employees to participate in the investigation process, present their side of the story, and respond to evidence against them – even if caught “red-handed”.

3. Evidence Handling & Witness Testimony

The credibility of witness testimony played a crucial role in this case. The company’s key witness, a security guard, provided testimony that was ultimately found to be inconsistent and not fully corroborated by other evidence. The court noted discrepancies in their account, and the handling of the evidence (the bottle of lemon juice) was questionable​​.

Lesson: Employers should ensure that witness testimony is reliable and consistent. Proper handling and documentation of evidence are also essential to support the case against an employee.

4. Appropriateness of Sanctions

The Court emphasised the importance of proportionality in the sanctions imposed on employees. Even if misconduct is proven, the sanction must be appropriate to the nature and severity of the misconduct, and the trust/employment relationship must be proved to have broken down irretrievably. In this case, the Court found that the dismissal was a disproportionate response to the alleged misconduct, especially given the procedural flaws in the investigation​​, and that no evidence was led regarding the breakdown in trust.

Lesson: Employers should carefully consider whether the disciplinary action taken is proportional to the misconduct. Dismissal should be a last resort and should only be considered for severe breaches of conduct or after other corrective measures have been attempted. Where there is a severe breach of conduct by an employee, an employer must prove that this misconduct has also caused the employment or trust relationship to break down irretrievably.

5. Reinstatement & Back Pay

As a result of the unfair dismissal, the Court ordered Mr Dlamini’s reinstatement with full back pay. This underscores the potential financial and operational repercussions for employers who fail to follow fair procedures​​ and neglect to lead evidence regarding the trust/employment relationship.

Lesson: Unfair dismissals can lead to costly legal battles in the Labour Court. Employers should strive to handle disciplinary issues with fairness and compliance with the Labour Relations Act to avoid such outcomes or at the least to guarantee that they are placed in an excellent position to defend such cases in the Labour Court.

The “Lemon Juice” case is but one example of many that serve as crucial reminders to employers about the importance of conducting fair, thorough, and respectful disciplinary processes. By adhering to these principles and correctly leading evidence and credible witness testimony, employers can avoid the pitfalls of unfair dismissal claims, defend them successfully at Arbitration and ultimately foster a more just and equitable workplace environment – minimising the risk of a sour aftertaste.

Written by Carl Ranger, Head of Training at Consolidated Employers Organisation (CEO SA)