24 Mar 2013

Employment & Pension Law, Evaluate carefully before dismissal, fetured in The Mercury's Network

Practice Area(s): Employment |

'JILL' was employed by a distribution company and based at one of its largest customers. Jill began an affair with Jack, a fellow employee. The relationship ended.

Jack then assumed a relationship with Janet who was employed by the customer of the distribution company. Jill did not like this turn of events and began sending Janet unflattering e-mails. She also left a black lace nightdress on Janet's desk with a handwritten note describing her encounters with Jack and making reference to his tattoos.

Jill's employer was of the view that her conduct brought it into disrepute with its customer and e-mailed Jill to cease contact with Janet. Despite this, Jill sent Janet another unflattering e-mail which led to Jill being dismissed for unacceptable behaviour, failing to obey an instruction and for failing to comply with the company e-mail policy by sending the offensive e-mail.

Not embarrassed by these events, Jill referred a dispute to the CCMA. The arbitrator was of the view that Jill was not guilty of gross misconduct and she was reinstated retrospectively.

The employer was not happy with this and approached the Labour Court to review the award. The court found that there was no proof that Jill had received her employer's e-mail before she in turn sent the offending e-mail to Janet.

The court agreed that Jill's conduct of leaving a nightdress and an explicit note on Janet's desk was inappropriate behaviour. However, there was no evidence to show that Jill's employer's name was brought into disrepute.

No evidence was led at the arbitration to indicate that the customer's senior management were involved in the matter or even aware of the details.

It was highly improbable therefore that the customer would terminate its relationship with Jill's employer because of the e-mail exchange. The court held that Jill's conduct was childish and deliberate, but it was not of such a serious nature that it could be said to have brought her employer's name into disrepute.

The court noted that the arbitrator properly considered that:

  • The parties did not indicate that the trust relationship was destroyed.
  • Given the employee's nine years' service, progressive discipline was not properly considered.
  • The employee's behaviour did not constitute gross misconduct.

The e-mail policy was not applied consistently. The court dismissed review but did not award costs in favour of Jill because the court was of the view that a costs award would have a chilling effect on the parties' attempts to build the employment relationship. It also thought that making Jill pay her own costs would make her think twice before acting in a similar fashion.

Employers are encouraged to evaluate facts carefully and un emotionally before dismissing employees. It is also important to place all relevant evidence before the arbitrator to increase the prospects of success.