Misconduct and the common, menial worker

2017-03-07 19:05

“The common labourer is not to be treated as a mere unit of labour. He is also a human being.” So when Sutherland JA uttered these twenty powerful, thought provoking words, I viewed them both as an indictment as well as a reminder of how far we as South Africans have yet to go in our quest for socio-economic justice for all.

Let me provide you with a citation, so that you can check them out in the context in which they were uttered. It’s a Labour Appeal Court judgment, handed down on 28th February 2017 namely IDWU obo Linda and Others v Super Group and Others [2017] ZALAC 17 and is easily accessible from the website www.saflii.org.za.

The background in a nutshell. The judgment has the details in chapter and verse.

The employer, in this case was a labour broker. It assigned the employees to, to a client Goodyear at a site in Germiston, on 8 February 2008, and that they left the site before the end of the work-day.In otherwords they deserted their posts. They had been in the employ of the employer for some time prior to 8 February and at the end of their previous assignment, they were available for re-deployment. They were offered assignments at Goodyear. They accepted. Their wage, however, rates remained static. They were delivered to Goodyear at 8h00 on 8 February. These employees were dismissed, after a disciplinary hearing, on the grounds of desertion and clearly in breach of their contractual code of conduct. For want of context , they pleaded guilty and provided mitigating circumstances. The rest, is in the details of this judgment. Make it a point of reading and studying it.

My take.

This is my take, my sense of how, certain employers perfunctorily handle issues concerning workers who are deemed as ‘temporary workers”, the most vulnerable and who earn well below the proposed minimum wage. As such they are at the whim and fancy and are so easily replaceable if, say a client of the service provider who hires them out, doesn't want them anymore. No reasons are required between the employer and the client. The employees in this case, worked for a labour broker and they earned, in the learned judge’s words "meagre wages” that were out of synch with the costs of living, especially travel costs as they were expected to arrange their own transportation to and from their contracted out workplace. It was this that caused them to desert their posts. They were not educated or learned people and they probably reacted as they did out of desperation.

I reiterate that these employees were dismissed, after a disciplinary hearing, on the grounds of desertion and clearly in breach of their contractual code of conduct. For want of context , they pleaded guilty and provided mitigating circumstances.

The employer was concerned about the reputation damage their conduct had done and sought the ultimate sanction. The desertion dented the employer’s goodwill with Goodyear. No further placements have been called for since this incident.

That’s well enough and understandable but there had to be some compassion and understanding factored into the rationale for the ultimate sanction. In the learned judge’s words its conduct was without a “ modicum of empathy” which, if undertaken, ought to have propelled the chairman of the disciplinary hearing, at least, to delve deeper and to probe the implications of their predicament, and led to it, that is what led them to desert their posts and then to weigh that factor in determining the degree of blameworthiness to attach to their actions.” ( see para [36]).

The court found that despite they were found guilty, given their predicament driven by financial factors and that they were common labourers, dismissal was not an appropriate sanction and that they ought to have been handed a letter of final warning, no doubt I will venture to add, with counselling. “ A final written warning would (have been) proportionate to their delinquency”, so held the court ( at para [37]).

Thank you for reading this brief article. Let me have your comments.

Saber Ahmed Jazbhay

Labour Lawyer

Attorney and Conveyancer


Email: jazlaw@telkomsa.net

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