In Zimbini Makuleni v Standard Bank of South Africa Ltd and Others, the Labour Appeal Court (LAC) determined whether an employer could dismiss an employee for misconduct where the facts demonstrated that they were an unpopular boss

The appellant had been employed by Standard Bank of South Africa Ltd (Standard Bank) as a branch manager and was dismissed for misconduct.  The charges she faced included (i) being disrespectful, offensive and childish towards her subordinates and (ii) failing to motivate her team.  Standard Bank alleged that she had breached her contract of employment, her duty of good faith and created a hostile working environment.

The appellant successfully referred an unfair dismissal dispute to the CCMA, which found that the dismissal was unfair and ordered retrospective reinstatement.

On review, the Labour Court set aside the award and declared that the dismissal was fair.  Aggrieved with the Labour Court's findings, the appellant took the matter on appeal to the LAC.  The LAC upheld the appeal and confirmed the CCMA award.

The LAC accepted that the Commissioner's credibility and probability findings were not unreasonable for the following reasons:

• the versions given by one of the complainants as to the insulting words used by the appellant were fraught with the risk of error;
• the remark that had been made to another employee was dredged up a year after it occurred.  On the unchallenged evidence before the court, the spat between the appellant and the complainant had been resolved.  The LAC appeared to accept the Commissioner's finding that Standard Bank trawled for dirt to blacken the appellant's name and that such bad intent contaminated the reliability of the other claims of disrespectful or insulting behaviour made by other employees; and
• insofar as the charges regarding the failure to motivate the staff were concerned, the court found that these were "puerile". Firstly, Standard Bank had led no evidence about its managerial ethos and the Commissioner was not provided with a standard to measure the appellant's managerial style. Secondly, there had been no evidence that the appellant had discouraged the ideas of the subordinates.

Amongst other findings, the LAC found that the facts had demonstrated that the appellant was an unpopular boss who was reckoning, demanding, inclined to micro-manage and authoritative. The appellant had however improved the performance of the branch, which resulted in the branch being ranked third in the country.

The LAC addressed the issue of the appellant's managerial style versus her good performance in obiter stating that if the appellant's managerial style was inconsistent with what Standard Bank wanted, the appropriate response to this would have been to consider sending her for advanced management training.  If her interpersonal style was reformable, Standard Bank ought to have considered whether there was another position available for her in which she was not overseeing staff.

The findings of the LAC in obiter beg the question of whether Standard Bank followed the correct process.  When one carefully considers the circumstances surrounding the unpopularity of the appellant in the workplace and the hostile environment it apparently created, the question arising is whether Standard Bank should have followed an incompatibility process akin to an incapacity process instead of charging the appellant for misconduct.  Despite her good performance, the facts appear to demonstrate that the appellant was unable to work harmoniously with her colleagues or was unable to adapt to the culture of the workplace.

Even if the incompatibility process was the correct process to follow, the LAC suggests that more should be done by an employer to address disharmony caused by an employee with the view to remedy such disharmony.  Dismissal is always a measure of last resort.

Written by Mpumelelo Nxumalo, Partner, Siya Ngcamu, Associate & Justin de Wet, Associate from Webber Wentzel