An employee’s reinstatement hangs in the balance as her matter will be heard through fresh arbitration proceedings after a company, which dismissed her for gross misconduct, appealed against the award. 

The employee opposed the review application at the Labour Court sitting in the Western Cape. 

The employee, employed by a Free State arts company since 2008, was, in an acting stint, employed as the personal assistant to the company’s chief executive officer (PA-to-CEO) from September 1, 2014, until 2016.

However, on June 1, 2016, she was subsequently appointed to act in that role and continued to do so until March 25, 2020, on which date she was informed that her services would be terminated on April 30, 2020. The PA-to-CEO role was renamed ‘CEO Office Co-ordinator’, and was filled by someone new.

The employee was then advised that, due to the revised organisational structure, her original position ‘does not exist anymore’, but she was to remain attached to HR and would report to the HR manager.

The employee, who was warned about her sitting at reception in full view of staff and issued a written ultimatum to stop her ‘illegal strike action’, argued that after a complete handover to the newly-appointed CEO coordinator, she was “not allocated a workspace, tools, or even duties” for her duties as an administrative secretary.

In early 2021, the employee referred her dispute to the CCMA with the primary issue described as ‘unilateral changes to terms and conditions of employment’.

On May 24, 2021, the company’s chief financial officer sent the employee a revised Administrative Secretary job description for her input and acceptance.

On June 2, 2021, the employee replied that she is unfamiliar with that job description, and that it differed from the one she had.

Meanwhile, the CCMA dismissed the employee’s referral. Subsequently, the chief financial officer implored the employee to “desist from non-compliant behaviour, to stop her work stoppage, obey instructions, and sign the job description and performance agreement that he had sent her, failing which disciplinary action would follow”.

Following a myriad of workplace incidents, on August 18, 2022, she was suspended on full pay ‘due to serious allegations of misconduct’ pending investigation and potential disciplinary proceedings.  

Following a disciplinary procedure, she was dismissed on charges relating to gross insubordination. The employee referred a complaint of unfair dismissal to the CCMA. 

In a review of her unfair dismissal, the arbitrator, among other reasons, stated that the employee “could not be compelled to sign something she did not understand, and which would later determine her performance assessment”.

The arbitrator found that her dismissal was unfair and ordered that she be reinstated without back pay.

Acting Judge of the Labour Court, Patrick MacKenzie, said: “It is clear from his award that the arbitrator approached the matter by treating the 12 May 2021 job description as the fulcrum of the dispute…

“What is more, the arbitrator’s finding that, had a meeting been called, the matter ‘would probably’ have been resolved is impermissibly speculative and unsupported by any evidence on record – and therefore also irrational. Considering that the arbitrator failed, in essence, to properly resolve the dispute between the parties, the appropriate remedy is to remit the matter for a hearing de novo before a different arbitrator.” 

chevon.booysen@inl.co.za

Source link