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The High Court allowed a labour revision, finding unfair termination for lack of a formal charge, denied cross-examination, no supplied investigation report, and bias in the disciplinary committee.
The termination of the applicant was both substantively and procedurally unfair because the disciplinary committee was improperly constituted with members of lower rank, and the respondent failed to prove valid reasons for termination as required by law.
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The applicant materially breached clause No. 12 of the employment contract by using another client’s account to bill orders for unqualified customers, exposing the respondent to business risk and tax implications. The procedure for termination was followed, the applicant was notified and heard, and the sanction imposed was justified. The award of the CMA was properly procured.
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The Court of Appeal held the employee’s termination was substantively unfair but procedurally fair, and replaced the High Court’s award with 12 months’ compensation under the ELRA.
Court of Appeal held the labour appeal was mostly factual, declined new procedural grounds, and dismissed the challenge to termination for gross dishonesty.
The applicant failed to provide timely and relevant medical evidence to justify his absence from work during the period in question. The medical reports submitted did not cover the dates of absenteeism, and the illness argument was raised only before the Commission, not during internal disciplinary proceedings. The employer followed proper procedures, and the Commission's decision to dismiss the application was correct.
Source excerpt
The respondent admitted to performing duties of the vendor and making payments to vendor's employees, contrary to the employer's code of conduct and contract terms. This constituted misconduct and justified termination. The procedural violations alleged by the respondent were not sufficient to override the substantive admission of misconduct. The CMA's award was based on a misapprehension of the evidence and legal standards.
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The applicant's termination was based on valid reasons of gross negligence, as admitted by the applicant during the disciplinary hearing, and all procedural requirements for fair termination were followed by the respondent. The applicant failed to prove any breach of contract or procedural irregularity.
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The applicant failed to follow the required disciplinary procedures for termination, specifically by not conducting a disciplinary hearing or making reasonable efforts to trace the respondent. The law allows for a hearing in the absence of the employee, but the applicant did not utilize this provision. Therefore, the termination was procedurally unfair.
Source excerpt
The High Court upheld a CMA award dismissing a labour revision over alleged unfair termination, finding the employee’s absenteeism justified termination and procedure was followed.
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