Employment law update – Dishonesty and gross negligence

June 1st, 2022
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In Massmart Holdings v Reddy and Others [2022] 4 BLLR 337 (LAC), the employee was employed as an audit manager by Massmart Holdings (the Company). As part of his duties, the employee, together with his line manager and subordinates, was responsible for preparing a risk assessment plan, which would be used to develop the annual audit for their area of operation.

The risk assessment plan was expected to be completed within six weeks and each member of the audit team was required to complete a risk assessment worksheet. On the eve of the deadline, it was alleged that the employee informed his line manager that his risk assessment worksheet was ‘almost done’. The following day, the employee went on authorised sick leave for two weeks to undergo a scheduled medical procedure. The employee, however, failed to provide a completed risk assessment worksheet to his line manager prior to commencing sick leave.

On his return to work, the employee was summoned to a disciplinary hearing in which he was charged with the following –

  • dishonesty in that he had advised his line manager that he was in the process of compiling the risk assessment worksheet notwithstanding that he had not done any work in respect of the worksheet; and
  • gross negligence in that he failed to meet the agreed deadlines for submission of the worksheet and failed to communicate such to his line manager.

The employee was found guilty of the charges and subsequently dismissed.

The employee referred an unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA commissioner found that the employee had been dishonest on the basis that he did not complete a risk assessment worksheet and had been grossly negligent in that he failed to timeously submit the worksheet and to inform his line manager that he was unable to meet the deadline. As a result, the CCMA Commissioner found that the employee’s dismissal was fair. The CCMA award was, however, set aside by the Labour Court (LC) and the employee was reinstated.

The Company appealed against the judgment of the LC and the employee cross-appealed against certain factual findings made by the LC. The Labour Appeal Court (LAC) held that for a commissioner to determine the fairness of a dismissal, they must first determine whether the employee was guilty of the offences for which they were dismissed, in this case dishonesty and gross negligence.

Dishonesty

In respect of the charge of dishonesty, the issue was whether the employee had advised his line manager that he was compiling the risk assessment worksheet when in fact he did not do any work in respect of the worksheet. While the CCMA Commissioner found that the employee was dishonest because no risk assessment worksheet was completed, the LAC was of the view that the Commissioner had misunderstood the question before her. The Commissioner failed to understand that the risk assessment worksheet was the final document to be produced after a long and complex process. The process required consultations and meetings with client businesses. The risk assessment worksheet was the end-product of these interactions.

Having regard to the charge, the employee was not required to produce a completed worksheet to prove that he had been honest. All he was required to show was that he was in the process of compiling the worksheet, which he had been. The only thing that was outstanding was to change the ratings on the worksheet, which he would have done post-operation. The Commissioner’s finding that he had been dishonest was accordingly unreasonable.

Gross negligence

In respect of the charge of gross negligence, the issue was whether the employee was grossly negligent in failing to meet the agreed deadlines and inform his line manager that he would not be able to complete the worksheet after he commenced his sick leave. The employee submitted that he could not be said to have acted negligently as he was unable to meet the deadline and inform his line manager because he was incapacitated owing to post-operative complications. The evidence was that, pursuant to his operation, the employee was not sleeping, he was bleeding excessively, and he was not able to work. This evidence was not challenged by the Company.

On the facts presented, the LAC found that the employee was fully prepared to work during his sick leave. However, it became impossible for him to do so given the severity of his post-operative problems. Had he been well enough, the employee would have completed the risk assessment worksheet and advised his line manager accordingly.

In the circumstances, the LAC was of the view that the LC was correct to have reviewed and set aside the findings of the Commissioner.

The appeal and cross appeal were dismissed.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2022 (June) DR 35.

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