By Tessa Kassel; Vice Chairperson; General, Domestic & Professional Employers Organisation (GDPEO)
A dismissal may be determined to be fair if it relates to the employee’s conduct, incapacity, or the employer’s operational requirements.
However, what happens when the reason for the employee’s dismissal falls “between the cracks” in that it could relate to either the employee’s capacity to perform the job, or it may relate to the employer’s operational requirements?
What is the appropriate route to follow?
What this article will attempt to show is that not only employers get the correct classification for a dismissal wrong; but CCMA Commissioners have on occasion too.
Employers may be faced with a situation where an employee becomes “unfit” to perform his or her duties.
There may be a certain minimum standard present that an employee must attain to render a proper service to the employer.
For example, a courier company driver must possess a valid driver’s license. What happens when an employee can no longer perform the duties assigned to him because he does not possess the necessary minimum requirements to perform his job?
What happens should our courier driver lose his driver’s license because of reckless and negligent driving?
Does one retrench this employee, or is this a case of incapacity? What is evident is that the employee can no longer perform his job because he does not have a certain qualification, skill or minimum legal standard required by law to perform his job.
There are 2 judgments that illustrate the difficulty with this question.
Firstly, in the case of Armaments Corporation of South Africa (SOC) Ltd (ARMSCOR) v CCMA and Others (JR1961/13; JR1510/13, handed down in January 2016 it was held the Commissioner had failed to consider certain material facts and submissions placed before him and accordingly committed a material irregularity when he rejected ARMSCOR’s submissions that the employee had become incapacitated by operation of law, and therefore it had become necessary to terminate his services.
Mr Joubert (the employee) had had his contract with ARMSCOR terminated by operation of law after he failed to obtain the necessary security clearance in terms of section 37 of the Defence Act, a requirement to work at his level. Section 37(2) of the Defence Act, which would have been applicable to Joubert provides:
‘A member or employees contemplated in subsection 1(a) may not be enrolled, appointed or promoted, receive a commission or be retained as a member or employee, unless such member or employee has been issued with the appropriate or provisional grade of security clearance by the Intelligence Division.’
On 18 December 2012, ARMSCOR addressed a letter of termination to Mr Joubert. After citing the provisions of section 37(2) of the Defence Act and ARMSCOR’s related policies, ARMSCOR informed Joubert that:
“You are hereby informed that you have been refused all grades of security clearance. Consequently your contract of employment is terminated with immediate effect.”
Joubert, after being dismissed referred a matter to the CCMA. The Commissioner was tasked to determine the real legal basis for the dismissal and whether it was substantively and procedurally unfair. ARMSCOR contended at the arbitration that, Joubert was dismissed fairly for the purposes of the LRA, and his dismissal was a dismissal for incapacity. Joubert’s dismissal it was argued was fair in that it was dictated by section 37(2) of the Defence Act and ARMSCOR’s corresponding policies.
ARMSCOR referred the Commissioner to case law when it argued that incapacity can arise from any condition that prevents an employee from performing his work (my emphasis) and that an employer may legitimately dismiss an employee incapable of performing his obligations arising from the employment contract. Joubert’s employment was terminated because it had resulted from a legal provision.
Martin Brassey referred to incapacity when he said in Samancor Tubatse Ferrochrome v MEIBC & others  8 BLLR 824 (LAC)
“Incapacity may be permanent or temporary and may have either a partial or a complete impact on the employee’s ability to perform the job. The Code of Good Practice: Dismissal conceives of incapacity as ill-health or injury but it can take other forms. Imprisonment…, for instance incapacitates the employee from performing his obligations under the contract. The dismissal of an employee in pursuance of a closed shop is for incapacity; so is one that results from a legal prohibition on employment.”
A consideration of the above facts – which the Commissioner did not take into account – demonstrates that the Commissioner’s finding of substantive unfairness was not a reasonable decision.
The effect was that a failure to consider these factors caused an unreasonable outcome.
What transpired eventually was that the Judge (Whitcher) found the dismissal was substantively fair.
Effectively, the reason for the dismissal related to one of incapacity. However the dismissal was procedurally unfair in that Joubert was not afforded the opportunity to state his case at an incapacity investigation. His services were summarily terminated when the employer issued him with the letter referred to above.
What is evidenced by the abovementioned case is that although there may be a valid reason to terminate the services of an employee as a result of their incapacity, one must still follow a fair procedure as dictated by the LRA in Schedule 8. Due to their failure to institute any pre-dismissal procedure, ARMSCOR was order to pay eight (8) months compensation to Joubert!
However, Joubert had worked for ARMSCOR for 31 years. Had ARMSCOR followed the retrenchment route, it would have had to pay him for those years of service as a result.
An argument many employees may use at the CCMA is that the question may revolve around the fact that the employer in certain circumstances may utilise incapacity procedures to terminate an employees’ service in order to escape the liability associated with dismissals as a result of retrenchment.
The second case pertinent to this discussion is a recently handed down judgement.