How valid is a dismissal based upon personal spite?

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Feelings of spite arise at work for a great variety of reasons such as: 

  • Resentment due to the lodging of grievances 
  • Power struggles between managers 
  • Racial and other prejudices 
  • Scapegoating 
  • Managers feeling threatened by other managers or senior staff 
  • Sexual affairs 
  • Favouritism and victimisation 
  • Nepotism 
  • Change in management and the development of factions 
  • Personal clashes between people in power.

 

Feelings of spite occur across the spectrum of private businesses, government departments, statutory bodies, academic institutions, welfare organisations and NGOs. While these smouldering, subtle conflicts affect all levels of employees they tend to become much bigger, much more intense and much more damaging when employees lodge grievances against their superiors.

For example, in the case of Kanemeyer vs Workforce Group (2005 8 BALR 824) the employee resigned and claimed constructive dismissal on the grounds that she had been disciplined for lodging a grievance against the reduction of her commission structure. She said this, together with the fact that she, as a commission earner, had been office bound, constituted victimisation. The employer argued that the employee resigned in response to having been disciplined for poor work performance. The employer however, failed to bring any evidence to rebut the employee’s claim that she was being disciplined out of spite for having lodged a grievance. The arbitrator therefore found that constructive dismissal had been proved and ordered the employer to pay the employee eight months’ remuneration in compensation.

In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. A more serious consequence can be negative publicity. On the other hand the employee is in trouble because he/she is without a job. But negative consequences of private hostilities and unresolved conflicts can go even further than this. This is because such conflicts tend to permeate throughout the organisation with people taking sides and forming factions. The fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation. It is therefore crucial that the employer:

 Identifies personal hostilities early

  • Accepts that it needs to be dealt with urgently, and
  • Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.

The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.

However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.

Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached labour law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence.

On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.

Workplace animosity is here to stay but employers and employees can, by acting timeously and sensibly, prevent it from causing irreparable harm.

 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.

To book for our 7 June seminar in Johannesburg on CHAIRING DISCIPLINARY HEARINGS please contact Ronni via ronni@labourlawadvice.co.za or 0845217492.