Aveng ordered to pay former employee over R1. 6 million after dismissing him for calling managing director a liar
Aveng Africa has been ordered to pay a former employee over R1.6 million after he was dismissed for calling the managing director a liar.
The decision comes after the company sought relief at the Labour Court in Johannesburg to overturn a decision made by the Commission for Conciliation, Mediation and Arbitration (CCMA).
Kobus Burger has been employed by Aveng Africa as a New Business Development and International Executive since 1996.
Originally set to retire in September 2018 at the age of 60, his retirement agreement was modified, extending his tenure to 62, which would have meant his departure at the end of September 2020. However, his employment was terminated prematurely due to dismissal.
On the day of the incident in October 2019, Wouter De Gidts, Aveng Africa’s interim Managing Director was involved in this appointment process for a permanent Managing Director of the Infraset business unit.
During a meeting, Gidts announced that Mr Quayle had been appointed as Managing Director of the Infraset business unit from October 1, 2019.
Burger’s reaction was immediate and vocal, accusing De Gidts of lying, lacking integrity, being dishonest, and failing to uphold Aveng Africa’s values.
Burger concluded by questioning what value, if any, was Mr Quayle adding to Infraset. The following day, during another meeting, Burger continued with the same utterances he had made the previous day.
After his suspension a week later, he faced misconduct charges, specifically gross insubordination and gross insolence, stemming from his conduct during both meetings. He was convicted and summarily dismissed in December 2019.
Burger subsequently referred the matter to the CCMA and in May 2022, it was ruled that his dismissal was substantively unfair and Aveng Africa was ordered to compensate with over R1.6 million by 10 June 2022.
The amount was equivalent to nine months of Burger’s salary, based on his monthly income of R183,133.
Aggrieved, Aveng Africa instituted a review application in the Labour Court where the matter was heard by acting judge MS Mphahlele.
Mphahlele stated that the events leading up to the employee’s behavior must be considered when determining the employee’s intent. This consideration is crucial for ascertaining whether the conduct was “wilful or deliberate, persistent and deliberate challenge to the employer’s authority,” thereby qualifying as gross insubordination, or “impudent, impertinent or disrespectful,” thus constituting gross insolence.
The court heard that prior to De Gidts announcing Mr Quayle as Managing Director, Burger found out about the appointment and expressed his concerns to De Gidts via email, but he didn’t receive a response.
Some of his concerns were that Mr Quayle was an outside person, white, and did not fit in terms of the BBBEE requirements, as well as the Infraset succession plan.
The judge said the appointment of Mr. Quayle, which resulted in the non-compliance with the Transformation and BBBEE policy, Succession Plan and Employment Equity Plans of Infraset, is the source of the Exco members’ discontentment, which led to the heated utterances.
“It cannot thus be said that the Commissioner misconstrued the nature of the inquiry by coming to the conclusion that Mr. De Gidts’ non-compliance with the Transformation and BBBEE policy justified Mr. Burger’s outburst or utterances,” read the judgment.
The court also heard that the company had for many years tolerated Burgers’ outbursts and alleged passionate manner of addressing issues directly with his superiors, irrespective of their hierarchical position.
Even De Gidts claimed that Burger acted with “a very elevated impression” of his authority and “operated way above his pay scale.” The judge found it difficult to comprehend why Aveng Africa would cease this tolerance just a few months before his retirement.
“This, in my view, supports the submissions made on behalf of Mr. Burger regarding inconsistency in the application of discipline by Aveng Africa,” said the judge.
The judge further noted that, upon closer inspection, Aveng’s criticisms merely reflected dissatisfaction with the Commissioner’s rationale for deeming Burger’s dismissal unfair.
“The criticisms are, in any event, not sustainable. The award meets the standard of reasonableness. No case has been made out to review and set it aside. It follows that the application stands to be dismissed,” said the judge.
The application was dismissed.
sinenhlanhla.masilela@iol.co.za
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The court heard that prior to De Gidts announcing Mr Quayle as Managing Director, Burger found out about the appointment and expressed his concerns to De Gidts via email, but he didn’t receive a response.
Some of his concerns were that Mr Quayle was an outside person, white, and did not fit in terms of the BBBEE requirements, as well as the Infraset succession plan.
The judge said the appointment of Mr. Quayle, which resulted in the noncompliance with the Transformation and BBBEE policy, Succession Plan and Employment Equity Plans of Infraset, is the source of the Exco members’ discontentment, which led to the heated utterances.
“It cannot thus be said that the Commissioner misconstrued the nature of the inquiry by coming to the conclusion that Mr. De Gidts’ non-compliance with the Transformation and BBBEE policy justified Mr. Burger’s outburst or utterances,” read the judgment.
The court also heard that the company had for many years tolerated Burgers’ outbursts and alleged passionate manner of addressing issues directly with his superiors, irrespective of their hierarchical position.
Even De Gidts claimed that Burger acted with “a very elevated impression” of his authority and “operated way above his pay scale.” The judge found it difficult to comprehend why Aveng Africa would cease this tolerance just a few months before his retirement.
“This, in my view, supports the submissions made on behalf of Mr. Burger regarding inconsistency in the application of discipline by Aveng Africa,” said the judge.
The judge further noted that, upon closer inspection, Aveng’s criticisms merely reflected dissatisfaction with the Commissioner’s rationale for deeming Burger’s dismissal unfair.
“The criticisms are, in any event, not sustainable. The award meets the standard of reasonableness. No case has been made out to review and set it aside. It follows that the application stands to be dismissed,” said the judge.
The application was dismissed.
sinenhlanhla.masilela@iol.co.za
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Get your news on the go. Download the latest IOL App for Android and IOS now.