Cape Argus

Dismissed for making false claims

- KIRSTEN EISER and SHANE JOHNSON Eiser is a partner and Johnson a profession­al support lawyer at Webber Wentzel.

IN A RECENT matter (Ndzimande and Others v Didben NO and Others (JR 1404/14) (2019) ZALCJHB 73 (2 April 2019) the Labour Court considered the dismissal of three employees who made disparagin­g statements about their employer on public radio.

The court ultimately upheld the arbitratio­n award of the CCMA, which dismissed the employees.

Key facts to the finding were that: there was a policy related to external communicat­ions by employees; the employees in question understood the consequenc­es of breaching this code and made statements which were false, malicious and damaging to the employer’s reputation.

The decision is important for employees and employers alike.

On September 28, 2012, a group of employees, having waived the grievance process contemplat­ed by the relevant collective agreement, marched to the Department of Labour.

They prepared a memorandum of grievances to be handed to the department. The grievances included alleged non-payment of monies due to employees and other issues related to health and safety, and shift systems.

During the course of the march, three employees made statements in interviews with journalist­s of SABC radio stations (Ikwekwezi FM, Ukhozi FM and Motsweding FM) about their employer and the grievances.

These statements were aired shortly thereafter.

As a result of these statements, the employees faced charges of gross misconduct and after a disciplina­ry process, they were dismissed.

The employees challenged the fairness of their dismissals at the CCMA.

The presiding commission­er found their dismissals to be fair.

The commission­er reasoned that the employer had a standing policy pertaining to external communicat­ions. The commission­er found that the employees ought to have been aware of this rule and that they failed to comply with the rule by making statements to the media.

The employees then approached the Labour Court on review alleging that the commission­er committed various gross irregulari­ties and assisted the employer during the arbitratio­n proceeding­s. On review, the court considered the arbitratio­n proceeding­s and the evidence led by both parties.

The court ultimately upheld the arbitratio­n award of the CCMA.

A key element of the employer’s case in this matter was the Code of Communicat­ion in place at the workplace. In terms of this code, employees were not permitted to make statements to the media without prior authorisat­ion from a designated authority within the business.

At the time, the employer’s chief operations officer was the designated authority responsibl­e for providing permission to employees who sought to appear in the media.

The ultimate question before the court was whether the statements made by the employees on radio constitute­d misconduct that was gross enough to justify dismissal.

The court establishe­d that the employees in question were aware of the Code of Communicat­ion in the workplace and that they understood the consequenc­es of breaching it.

The court said, in the ordinary course, there is nothing wrong with employees raising legitimate grievances and threatenin­g strike action.

However, it is incorrect for employees to make false and defamatory statements in public which may have serious repercussi­ons for their employer. This is further enhanced when employees are subject to specific policies and procedures in relation to public statements.

The court held that the statements made were false, malicious and damaging to the employer’s reputation. In making these statements, the employees also breached the employer’s Code of Communicat­ion. The sanction of dismissal was held to be appropriat­e.

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