GENEROUS TO A FAULT

The labour court has upheld the dismissal of a pharmacist who gave exorbitant discounts, despite a curious CCMA ruling in his favour

Arecent decision by the labour court has left me wondering how some pharmacies stay solvent, given the extraordinary discounts they routinely offer certain customers.

The case involves pharmacist Siyabulela Zulu, who was employed by Madeira Pharmacies at the start of 2010. Six years later, after being dismissed for misconduct over such discounts, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation & Arbitration (CCMA).

After the arbitrator, Elizabeth Tom, found Zulu’s dismissal unfair and awarded him compensation, the company went to the labour court. There, judge Dephny Mahosi recapped the issues.

She said Zulu had faced three “charges”, starting with insubordination, after ignoring the MD’S instruction to “discontinue giving customers more than 10% discount” and to inform other staff members to follow suit.

He had also been insolent in his refusal to comply.

Finally, there was “dereliction of his duties” in that, despite being the responsible pharmacist in charge, he and the staff continued to give overly generous discounts to clients.

Zulu had “pleaded guilty to the offence of continuing to give 30% discount”. He also did not deny that he had failed to tell the staff to stop giving steep discounts.

Though Tom found Zulu had behaved badly, that he had challenged the authority of Madeira Pharmacy’s MD and that he had caused financial harm to the employer, the arbitrator strangely ruled that Zulu’s dismissal was unfair. Tom said Zulu’s conduct “amounted to gross insubordination” in that he offered a 30% discount to three doctors and allowed other staffers to do the same, despite knowing that such a discount caused the employer to suffer financial loss.

The arbitrator also considered Zulu’s justification for not reducing the discounts offered to these clients: “He gave 30% discount because the customers were used to it.”

Rejecting that claim, Tom said the instruction to Zulu had been clear. He could have sought authority from the employer to continue offering these clients the discount, but had not done so.

This amounted to a challenge to the authority of the company and “caused financial harm” to the employer.

Why then, despite all these findings and a conclusion that Zulu was guilty of serious misconduct, did the arbitrator find his dismissal to be unfair?

‘Trivialising’ misconduct

Zulu claimed the company had been inconsistent in its approach. He said another staffer had given a 30% discount subsequent to his leaving the company, but had not been dismissed.

However, according to Madeira Pharmacy’s case in the labour court, Tom failed to take into account that the company did not know about the subsequent discount episode. It took place after Zulu was dismissed and the arbitrator “simply accepted the customer’s receipt” showing that such a discount had been given. Zulu did not show that the company had made an arbitrary selection of whom to discipline over the discounts and, until the receipt was produced at the CCMA, the employer “was not aware of the misconduct committed” by the other staff member.

Commenting on the award, the judge said there was no basis for the arbitrator to have “trivialised” the seriousness of Zulu’s misconduct, his gross insubordination, his dereliction of duty and the financial loss resulting from his behaviour. Zulu owed a duty of care to the employer and in all these circumstances the sanction of dismissal was recognised as fair and appropriate by the Labour Relations Act.

Mahosi held the arbitrator’s ruling was not reasonable and set it aside, concluding that the dismissal was substantively and procedurally fair.

Why, despite concluding Zulu was guilty of misconduct, did the CCMA find his dismissal to be unfair?