A client's recent problem raised interesting legal questions on how to dismiss a certain employee and whether it would be substantively fair.
In a nutshell, our client's dilemma emanated from the unpleasant body odour of one of its female employees. The actual reason for this body odour is not known, although co-workers have alleged that it came from "something that she smears on herself".
Being a very different situation, the question was then raised as to how this matter should be dealt with, namely:
1. In terms of Schedule 8 of the LRA's Code of Good Practice dealing with an ill health incapacity dismissal; or
2. In terms of Section 189 of the LRA dealing with an operational requirement dismissal.
As with all labour matters there are other complications which also require consideration, for example: The employee had 15 years' service, a clean disciplinary record and was an excellent worker.
The employee was unionised and the company, with the shop stewards and later the union officials, had tried to deal with the smelly situation for nine months. The shop stewards tried to discuss the situation with the employee but she would not acknowledge any problem or smelly condition.
These actions did not have the desired outcome and the company received more and more pressure from the workforce/
co-union members to "deal with the problem" even if it meant dismissing her.
Legal research identified two cases that provided guidelines, namely, the Labour Court case of Govender v Mondi Kraft and the Labour Appeal Court case of Lebowa Platinum Mines Ltd v Hill. Both cases concerned inter-racial problems (which did not exist in our client's case); in both cases the employees were originally disciplined, but not dismissed; in both cases a third party (the employees and unions) put pressure on the employers to dismiss.
In the Govender matter he was dismissed based on the company's operational requirements, and in Hill's case he was dismissed for incapacity.
In the Govender case the LC confirmed the fairness of the dismissal due to the dismissal for operational purposes being substantively fair. The dismissal was procedurally fair as the process of Section 189 of the LRA had been followed.
In the Hill matter the dismissal for incapacity was fair, even after 20 years of service. The LC has laid down certain principles which need to be taken into account for such an incapacity dismissal, namely:
- The mere fact that a third party is demanding a dismissal is not enough to justify a dismissal.
- The dismissal demand had to have sufficient foundation.
- The threat of action by a third party if its demand was not met had to be real or serious.
- The employer has to make a reasonable effort to dissuade the third party from carrying out its threat.
- The employer had to have no other option but to dismiss.
- The employer should investigate, consider alternatives and consult with the employee.
Going back to our client's predicament, it followed, with the union's consent, a dual-pronged approach by dealing with the matter in terms of the procedural requirements of an incapacity dismissal and of an operational requirement dismissal.
The employee's service was terminated due to her "incapacity", making her "redundant" to the "employer's operational requirements". The union agreed by means of a signed collective agreement. - Cape Argus
- Pierre Marais is managing director of the Labour Law Group. Contact him on 011-958-1746 or via e-mail: labourlaw@global.co.za