Changing the reason for termination of an employee can get the employer into trouble.
By Judith Griessel, Griessel Consulting
Imagine that an employee is legitimately dismissed for misconduct. A few days later a union official calls, requesting the company to change the reason for termination to “retrenchment” on the employee’s certificate of service and UIF form – so that it does not look bad on the employee’s record. And if the employer does not agree to this, says the union, they will refer a dispute of unfair dismissal to the CCMA.
So – the employer has done everything right in dismissing the employee for misconduct and there are no grounds for an unfair dismissal claim. If they choose not to give in to a demand to lie to the UIF and future employers of the dismissed employee, they will be subjected to a baseless referral to the CCMA, time and costs wasted – as a reward for refusing to be dishonest. One has to wonder if the union (from experience) has a legitimate expectation that the matter might be settled at the CCMA on this basis – cementing the lie in a sanctioned CCMA settlement agreement. Would the fact that the parties agree to a misrepresentation in order to avoid adjudication, make it an ‘acceptable’ lie?
Employers who might be tempted to “assist” employees by lying in this way, or by saying that they had been dismissed when in fact it was a resignation or otherwise agreed separation, beware!
In KLM Consulting (Pty) Ltd v CCMA and Others (JR1256/2005) [2014] ZALCJHB 377 (3 October 2014) the Labour Court expressed its disapproval of such practices in no uncertain terms. The employee had referred a matter to the CCMA on various bases, including an unfair labour practice and that she was not paid her agreed retrenchment amount. The CCMA determined the dispute to be a retrenchment dispute and further dealt with the matter at arbitration as a retrenchment dispute.
The commissioner’s award against the employer was then referred to the Labour Court for review, inter alia on the ground that the employee had in fact resigned and that it had not been a retrenchment. The court was told by the employer’s attorney that there was no retrenchment and that reference to the employee being retrenched was an accommodation between the employee and the employer to allow the employee to qualify for certain statutory benefits (presumably UIF). The attorney conceded that at no point during the arbitration or cross-examination of the employee, did the employer suggest to the employee that there was never a retrenchment, but that she resigned. It was thus conceded that the employer committed a fraud on the CCMA by allowing the commissioner to preside over an arbitration dealing with a retrenchment when apparently there had been no retrenchment – yet it now wanted the Labour Court to interfere with the CCMA award on the basis that it was in fact a resignation.
The Labour Court commented as follows:
“ [18] The court turns its face against any fraud, particularly fraud perpetrated in respect of the processes that bear on the administration of justice. The applicant knowingly got the first respondent to deal with the matter as if it were a retrenchment when, according to the applicant, there was no retrenchment but a resignation. The applicant now wishes the court to disturb the award because the arbitrator dealt with the dispute on the basis that the third respondent’s services were terminated on account of her being retrenched.
[19] It is remarkable that the applicant has the temerity to seek recourse from a court of law in the light of its admitted fraud. The conduct of the applicant is a perversion of the administration of justice. It is also puzzling that an officer of this court would forge ahead and argue the cause for the applicant with full knowledge of the fraud by the applicant”.
The Court, understandably, wanted to have nothing to do with this and the review application was dismissed.
Now – in my example above, the employer would certainly not be amiss in insisting that said union official is called upon during the arbitration hearing to explain to the Commission how a clearly ‘frivolous and vexatious’ referral came about, only after the employer declined to be dishonest about the reason for termination of the employee. It is a matter of principle – the defence of which some employers are thankfully still willing to spend time and money on. The employee should bear the consequences of his actions and the system should not allow the employer to be blackmailed into lying about the reason for his termination by way of settlement (with our without the CCMA’s intervention) just to avoid wasted time and money.
For more information, please contact Judith at judith@griesselconsulting.co.za
