Learning Outcome 6 - Discipline & Dismissal case studies PDF

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DISCIPLINE & DISMISSAL case studies...

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LEARNING OUTCOME 6 - DISCIPLINE & DISMISSAL CASE STUDIES CASE NO.1 Read the following case study and answer the questions that follow: Fred, a foreman at Flicks Ltd, catches Isaac Radebe, a labourer, in the act of putting a roll of toilet paper in his personal carry-bag, just before closing time. Fred has been aware for quite sometime of the theft of various small items from his sector. He screams at Isaac, AYou thief, I have had enough of you stealing. I am suspending you and charging you with theft. See that you report tomorrow at 10am at Mr Zondi’s office, for a disciplinary hearing.@The next day, Isaac arrives at Mr Zondi’s office accompanied by Peter, his shop-steward from the Union. Fred, who is waiting outside the door, stops them and says to Isaac: I know about you and your trade union, you are just here to cause trouble, clear off and do your work. Mr Zondi calls Isaac and Fred in, and after they have sat down, he asks Isaac: Mr Randles informs me that he caught you putting a roll of toilet paper in your personal carry-bag. Is it true? To which Isaac replies: A He did say that he saw me do that yes. Mr Zondi, a rather busy man, and in hurry, says to Isaac, I’ve gone through your personal file, and see that you have worked for the company for 15 years. On the other hand, two years ago you were found guilty of stealing soap and towels from the cloakroom. In light of this fact, together with your long service, I am not going to dismiss you. You were suspended yesterday, which you did not work, and therefore you will not get paid. On top of this I will sentence you to another day=s suspension, as well as a fine of R150.00. Let this be a lesson to you. You can go now !.... Questions $ Comment on the disciplinary steps taken, and was it procedurally fair? Explain. $ If you were Mr Zondi how would you handle the situation? $ If Mr Radebe was unhappy about the decision, what should he do? $ If you were the foreman (Mr Randles) how would you have handled the matter? CASE NO.2 Read through the case study and decide whether you would, if you were the chairperson of the disciplinary enquiry, dismiss the employee or not. An employee has worked for Company X for 15 years. He absented himself for two weeks without authorisation. He returned with a doctor=s certificate booking him off from work on the last two days of which he was absent. At the time of being absent he had already exhausted all of his sick leave and had in addition, during that year, been absent for a further three days without leave. He had been counselled on a number of occasions and had been treated over a two year period for alcoholism. An analysis of the days off showed that they always occurred after the weekend or after payday. The employee said that the reason why he was absent was that he had gone to see a traditional healer to seek treatment and that it had been successful. He had now been free alcohol problems and had not drunk for a period of five weeks. The company argued that there was a long pattern of absenteeism and that the employee had failed to deal with his alcoholism despite having been given treatment and assistance by the company. The union representative argued that the employee had suffered from a disease in the form of alcoholism but had now been able to obtain a

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solution to the problem by seeing a traditional healer. Given his length of service he should be given a final opportunity to prove to the company that he had been cured. CASE NO.3 You are the chairperson in an enquiry where an employee has been accused of assault. The company maintains a hostel. The employee accused of the assault was in his room when another employee arrived drunk and made derogatory comments about his family. The drunk person then attempted to assault him and in response the accused employee severely assaulted the drunk employee to the effect that the employee was off work for a month. At the time of the assault neither of the employees were on duty. Indicate the sanction you would give and explain why. CASE NO.4 Two weeks ago you dismissed an employee for being drunk on duty. He had been working for you for two weeks when he came back from lunch in an intoxicated state. He gave no reasons for his condition when asked. Today an employee who has been in your employ for four years, with no previous history of drunkenness came back from lunch in an intoxicated state. You decide to dismiss him. He has appealed to the General manager against the dismissal on the following grounds: it is his first offence in four years; he had been informed at lunch-time that his wife had given birth to their first child and this event as cause to celebrate; he had freely admitted to his supervisor that he had been drinking and had caused no trouble. Explain whether you think the dismissal is fair. Substantiate your answer! CASE NO.5 Read the case below and answer the questions that follow: Zola applied for the post of supervisor at National Textile Manufacturers(Pty) Ltd, a textile factory. At his final interview he made it clear to the HR manager of the company that he had no experience in the textile industry as he used to be employed in the liquor industry. The HR manager nevertheless appointed Zola in the post of supervisor and the company gave him the undertaking that he would receive training. During the first three months of his employment Zola received two verbal warnings from Mr Cartwright, the manager of his section, because two of the company=s clients had been complaining about the poor quality of the fabrics delivered to them. when a third customer complained about the poor quality of the fabric and cancelled his orders, Mr Cartwright reported the incident to the general manager who called Zola to his office. The general manager impressed upon Zola the importance of good quality fabrics and informed him that the company could not afford to lose clients because of his failure to ensure the quality of their products. When Mr Cartwright informed the general manager that this was the third occurrence of this nature, the general manager dismissed Zola without further ado. Zola protested and tried to explain that he had never received training and did not know exactly what was expected of him. Mr Cartwright, however, informed the general manager that a fellow worker had been provided to train Zola. Zola requested the general manager to reconsider his decision, but the latter confirmed the dismissal and asked

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Zola to leave the company premises immediately. It was later proved that the fellow worker who was supposed to train Zola was on leave for three weeks at the time of Zola=s appointment and upon his return he spent half an hour with Zola to show him what he had to do. Questions 1. Is Zola’s dismissal fair or unfair? Motivate your answer. 2. If Zola believes that his dismissal was unfair and wants to take the matter further, describe the procedure that must be followed to resolve the issue. (Note: there is no bargaining council with jurisdiction in the area where the company operates) Hint: See sections 191 and 192 of the LRA(1995) CASE NO. 6 Read the case study and answer the questions that follow: You are the IR manager for Surefit Shoes. One of the company’s employees, Mr Anton Botha, has been employed as a driver for the past fifteen years. One of his duties is to fetch the wages for shift workers from the bank and run errands for the business. Given the current crime rate, Mr Botha is aware of the strict rule, while on banking duties, he is not to stop anywhere or to perform any other duties. However, during last week’s bank run, nearly R20 000 was stolen from the company vehicle while he was parked at the post office, which is two kilometres from Surefit Shoes premises. When questioned, Mr Botha said that, on his way back to the company premises, he had suddenly remembered an important and urgent registered letter which he had forgotten to post the day before. He did not put the bag under the seat as he usually did, as he was certain that the van was locked. When he came out minutes later, the bag with the money was missing. An investigation showed no forced entry and no fingerprints. The empty bag was found in a dustbin outside the bank the following morning. Mr Botha has a valid previous written warning for negligence when he damaged another car during unauthorised use of the company=s vehicle on Friday evening. 6.1 6.2

What procedural steps should you apply in this case to make sure that any disciplinary action you took would be considered fair, consistent and correct? What do you think an appropriate sanction for Mr Botha would be if he were found guilty? Explain.

CASE NO. 7 Julia was an employee at The Steak Ranch. On two occasions she had attempted to steal steaks, but each time she was stopped by the manager before she could remove the meat. On both occasions she received verbal warnings. On a third occasion she attempted to steal sauces which were served with the steaks. The sauces were specialities of this restaurant and the recipes thereof were kept secret at all times. When the manager questioned her, she admitted guilt and was dismissed without a disciplinary hearing. When she objected to her dismissal because of the absence of a hearing, the manager argued that a hearing would have made no difference since she had already admitted guilt.

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7.1 7.2

Is Julia’s dismissal fair or unfair? Explain and refer to decided cases to substantiate your argument. (20) Assume that Julia’s dismissal was unfair. Would you order reinstatement or would an award of compensation be a more appropriate determination? Motivate your answer. (10)

Hint: Foodpiper CC t/a Kentucky Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC). Also see sections 193 and 194 of the LRA(1995) CASE NO.8 Grant Green is the sole member and manager of Better Bottles CC, a close corporation which bottles an assortment of beverages. the business is labour intensive and mostly women are employed on the bottling line. Mrs Jane Davids was an operator on the bottling line. She and her husband were intent upon starting a family and, on 15 January 2005, a visit to her doctor confirmed that she was pregnant. She approached Grant Green a week later and advised him of her good news. He did not, however, share her view on the matter and complained that her pregnancy would prejudice her continued employment with the business. Mrs Davids was perplexed by Green=s response, but heard nothing more from him until 1 February 2005. On that date he called her into his office and told her that her services were terminated with immediate effect. 8.1 8.2

Explain whether Jane=s dismissal was fair and lawful. Jane believes her dismissal was unfair. She wishes to take the matter further. Describe the procedures which she must follow in an attempt to have the matter resolved. Include in your answer all possible remedies available to Jane in these circumstances

CASE NO. 9:

Drinking while on duty

Peter Chetty was employed at Central Allied Breweries (CAB) fifteen years ago. CAB manufacturers light draft beer for the local and the export market. Peter moved through the ranks from a sweeper to a line manager and he had his eye on the upcoming post of assistant manager. However, this morning he received an e-mail from the HR director, Manzi Cele that he must report for a disciplinary hearing which will be held that afternoon at 16h00. The e-mail read as follows: This serves to inform you that you should report to the General Boardroom at 16h00 this afternoon, 15 June 2007, for a disciplinary hearing pertaining to misconduct committed on your part according to the company’s code of conduct.@ Peter was shocked, since the e-mail was vague and did not explain the grounds for disciplinary action against him. Peter also was not aware that the company ever had a code of conduct, at least he had never seen such a document. He immediately went to Manzi’s office to find out what was happening, but was told by his secretary that he was Anot available for the whole day@. At least Thuli, the secretary, told him that it was Asomething about drinking while on duty@. Peter was then even more confused. Peter arrived on time at the boardroom for the hearing, but waited for 30 minutes before Manzi and Jerry Holmes, the Chief Operations Manager, arrived. The two men explained to Peter that three weeks ago, while accompanying Richard Dube, who is CAB’s beer taste tester (i.e. a person that tastes the beer to ensure that the quality is of a good standard), Peter was caught on the CCTV camera=s gulping down

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a glass of beer. Peter tried to explain to the two men, that it was apple juice that he had in a glass and while he was on lunch, Richard called him down to the production line with a query. Peter took the glass along with his juice, since he knew that he would probably have to spend some time on the production line. Richard poured some beer in a glass and when holding it up against the light showed Peter that the colour of the specific production batch was exceptionally light. Richard then tasted the beer and handed it to Peter to have another look. Peter then handed the glass of beer back to Richard and continued drinking his apple juice....When Peter was explaining these facts to Jerry and Manzi they seemed uninterested. Manzi and Jerry just said to Peter, that drinking while on duty is a dismissible offence according to CAB=s code of conduct and that he can collect his pay cheque from HR when he leaves since he is dismissed with immediate effect. 9.1

Comment on the procedural and substantive fairness of the above case.

9.2

Explain to Peter in detail the recourse available to him for being dismissed.

9.3

Identify and briefly explain to Jerry and Manzi the ground rules in establishing a code of conduct.

CASE NO.10: RETRENCHMENTS The Jelly Bean Bag Company dismissed 10 of its employees in February 2007. The company has a workforce of 100 staff. About 2 weeks prior to the dismissal, the owner called all the employees together and told them that the factory was doing extremely badly and that it was highly likely that there would be job losses in the very near future. He said that members could consult their unions if they wanted to. About a week before the dismissals the employer called all the employees together and said that he would be exceedingly fair in that he would pay severance pay above that required in terms of the Basic conditions of Employment Act. Instead of paying one week=s remuneration per year of service, he was going to pay two weeks= per year of service. He also said that he would be paying two week’s notice pay and that employees would be entitled to be paid out their leave pay as well as to receive their benefits from their provident fund. He apologised for the situation but said that he had no option. About four days prior to the dismissal a list went up on the notice board indicating the people that were to be retrenched - on studying the list it was not clear why certain people were retrenched and others kept on. Some people with long service were retrenched while others with shorter service were kept. By and large however, people with longer service were kept. Some union members were retrenched but some non-union members were also retrenched. Two days before the dismissal the union contacted the employer and said that they would like to consult with him about the retrenchment but he said that he had announced the issue about two weeks ago and that they had ample time to come to consult him but had not reacted at all. He said that it was financially impossible to delay the retrenchments any longer and that if he did not proceed with the retrenchments he would probably have to close the factory due to financial losses.

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QUESTIONS 1. 2. 3. 4.

Which provisions of the LRA are applicable in these circumstances? Comment on whether the retrenchments are fair or unfair. Explain. Assume that the company dismissed 5 employees in the first round of retrenchments and five months later another 6 employees were retrenched. Which provisions are applicable? Assume that the company retrenched only eight employees in total. Which provisions are applicable?

CASE NO. 11: RETRENCHMENT John Newton, the General Manager, sat at his desk staring at the recent financial statements. The information was shocking! Buccaneers Textiles (Pty) Ltd was literally losing money on a daily basis. Since the South African Reserve Bank has increased the rates in the last couple of months, South Africans have cut back on buying clothing. The company barely managed to survive the last recession, and now tough times are here again. Sales have decreased by 25% during the last quarter - at this rate the company will have to introduce short time. Hey, why are you looking so worried? asked James Kuppensamy, the Production Manager, while taking a seat opposite John. Have you seen these sales figures? It is terrible.., John replied. Ah! Come on now, you and I have been through tough times before-just cut our greatest expense and things will become normal again. You should just leave the selection process to me. I have a number of troublemakers I’ve been dying to get rid of in any case. Actually this situation is a blessing in disguise! laughed James. John just stared at James and shook his head. You are amazing! Some of our employees have given this company the best years of their lives and you are suggesting that we should just stab them in the back. Okay, I give in, sensitivity is not one of my strengths, but face reality - what is more important....keeping on a workforce that we won’t be able to afford in a couple of months in any case, or getting rid of them now? James asked. But, what about the unions? They will never support retrenching employees. They will argue that 25% drop in sales doesn’t justify such drastic action on our part, John responded. For a General Manager, you can sometimes really act stupid – don’t tell them it is 25% - inflate the figures. You and I know it is not going to get any better - at least not for the next 18 months. Believe me, you are actually doing them a favour! Besides last year I did Eric Ngema, the regional union officer a big favour. I employed almost his whole family - four sons and two uncles - he owes us and now it is pay - back time, James replied. 11.1

Explain to Buccaneers Textiles (Pty) Ltd the information that the company is legally obligated to disclose to the union if management intends to retrench the employees.

11.2

Is there a need for Buccaneers’ management team to consult with the union? Explain.

11.3

Identify and explain three (3) alternatives that the company can consider before retrenching the employees.

11.4

Assist the company in advising them on four (4) considerations that they should keep in mind when selecting employees that will be retrenched, while considering the nature of the business. If management fails to consult with the union and merely retrenches the employees, what recourse is available to the union. Explain in detail.

11.5

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CASE NO. 12

MISCONDUCT

A chemical company has just dismissed one of its employees. The facts of the case are as follows: Lindiwe was summarily dismissed after security personnel caught her attempting to leave the premises with waste products, worth R10.00, in her possession. The company’s disciplinary code states that any employee found guilty of removing, or attempting to remove, waste products from the premises will be dismissed without warning. Since Lindiwe admitted that she was guilty of attempting to remove the waste products from the premises, management decided that there was no need for a disciplinary hearing prior to her dismissal. In the eight years that Lindiwe was employed by the company, she had an exemplary record. Q.

Advise the employee on the lawfulness of the dismissal and the remedies, if any, that are available to her