Many employers implement restrictions on the acceptance of any gifts or favours from third parties such as clients or suppliers. It is not uncommon for these restrictions to be contained in disciplinary codes which prescribe general workplace conduct. Depending on the sector and nature of the work, the enforcement of these rules may vary and based on the severity of the alleged conduct, disciplinary sanctions may range from warnings to summary dismissal.
In the matter between Security Officers Civil Rights and Allied Workers Union obo Mkuthu and others / KYA Guards, 2022 the Commission for Conciliation, Mediation and Arbitration was tasked to decide whether the dismissal of four (4) employees who were dismissed for accepting gifts, was fair. The Applicants in this matter were employed by the Respondent as security guards and were stationed at the Port Elizabeth port. On the day in question, the Applicants were gifted with fish by a client who did not have a permit. Disciplinary hearings were held and the Applicants were subsequently found guilty of gross misconduct for accepting the gift from the client. The Respondent’s Regional Manager, Mr. Draai stated that during the disciplinary hearings, nearly all the Applicants pleaded guilty and apologised which he construed as an admission of guilt. Mr. Draai further stated that the prescribed sanction for accepting gifts or tips from clients is dismissal and if a gift is given it must be declared.
The Distinction between Accepting Gifts and Being Given a Gift
Upon analysis of the evidence, the Commissioner was more inclined to accept the Applicant’s version of events over the Respondent’s version. Mr. Draai, who was not employed by the Respondent at the time of the incident testified on behalf of the Respondent and Ms. Mkuthu, one of the Applicants testified on their behalf. While giving their evidence, Mr Draai appeared to be uncertain about issues in his testimony which gave the impression that he was only speculating. According to Ms. Mkuthu’s testimony, on the day in question, a client driving a bakkie approached the access gate and asked for a plastic bag, which was a regular occurrence for them. The client placed a plastic bag containing fish on the floor as a gift to the Applicants. She further testified that the Applicants did not touch the fish and instead requested that the driver write down his details and attempted to contact their supervisor, Mr. Mtoli. Mr. Mtoli only arrived after the client already left the premises and he disposed of the fish in the trash bin. The Commissioner found that based on the evidence presented, the driver was adamant in giving the fish to the Applicants which in turn placed them in a predicament. Items were given to them without them asking for it or taking physical control thereof. The driver was made aware that the Applicants were not able to accept the gift and left it regardless. The Applicants thus had to address the matter at hand and did so by immediately reporting it to Mr. Mtoli and he later confiscated the items and disposed of same.
In addition, the Commissioner recorded that although some of the Applicants pleaded guilty during their disciplinary hearings, arbitrations are hearings de novo, i.e. all evidence is heard anew and that the Applicants were not automatically guilty of the charge purely on the basis of their admission of guilt or apology. Moreover, in the event that the Applicants did accept the gift, that dismissal would not have been an appropriate sanction. The Commissioner alluded to the fact that the Respondent was unable to provide evidence of the disciplinary code which prescribes the sanction for accepting gifts.
Based on the above, the Commissioner found that the Applicants were not guilty and that their dismissal was substantively unfair, notwithstanding its procedural fairness. The Applicants were each awarded six (6) months’ compensation.
Important takeaways
The Commissioner correctly pointed out that the Respondent was unable to provide the disciplinary code on which it relied to terminate the Applicant’s employment. To ensure that employees are aware of their workplace rules and procedures, I recommend employers implement policies which clearly set out these rules. The Code of Good Practice on Dismissal (“Code”) contained in Schedule 8 of the Labour Relations Act 66 of 1995 (as amended) stipulates in Item 2 (1), that dismissals should be both substantively and procedurally fair. Item 3(1) further prescribes that employers adopt disciplinary rules that establish the standard of conduct required, and that such rules are clear and made available to the employees and are consistently applied. It is noted that not all rules require employers to communicate same to employees. Certain rules may be contained in a contract of employment or agreement for example, while other rules may be implied and/or stem from the common law – i.e. theft.
Additionally, in my view, the Respondent erred in accepting the Applicant’s guilty pleas as proof that they were guilty of the allegation against them. The Applicant’s conduct after being given the gift quite clearly indicated that their intention was not to accept the gift or to contravene any workplace rule which may have been in existence. Notwithstanding a guilty plea by an employee, employers maintain the duty to conduct proper investigations into alleged misconduct by an employee. Even if the final decision to impose specific disciplinary action rests with an employer, such decisions must be substantiated, and dismissal should be reserved for cases of serious misconduct or repeated offences. Furthermore, Item 3 of the Code encourages employers to consider the principle of corrective and/or progressive discipline when taking disciplinary action against employees. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.
Andrea Miguel – Candidate Attorney
Justine Del Monte & Associates Incorporated
