An employee who was fired for misrepresentation and misrepresentation has had his dismissal declared materially unfair and reinstated.
In a case described by acting Johannesburg Employment Court Judge Smanga Sethene as “a first of its kind in our labor law jurisprudence,” the employer dismissed the employee for alleged dishonesty and misrepresentation contained in the claim details in the employee’s civil action against the employer. The details of the claim were drafted, signed, filed and filed by the employee’s attorney who admitted under oath a fault on his part that was not attributable to the employee at all.
Mr E Tlhaganyane has been appointed by Assmang Limited-Blackrock Mine (Assmang) in or around October 2011, as Shift Supervisor. On July 20, 2017, he was suspended due to allegations that he had stolen his employer’s disciplinary records and after investigation, it was found that there was insufficient evidence of Tlhajanian’s alleged theft of his employer’s disciplinary records.
The comment has since been lifted.
Due to allegations of theft against him, Telhajanian filed a complaint in relation to Assmang’s grievance policy.
In his complaint, he alleged that he was “discriminated by his employer by claiming that he stole his employer’s disciplinary records.” After investigation, Assmang found that Tlhaganyane had not been discriminated against.
Unhappy with the outcome, Tlhaganyane instructed his lawyer to issue a summons for defamation of Assmang’s character. In the details of the suit, Tlhaganyane’s attorney stated that Assmang “dismissed” Tlhaganyane for allegedly stealing Assmang’s disciplinary records.
Assmang later accused Tlhaganyane of dishonesty and misrepresentation of facts in the details of the claim because she only commented on Tlhaganyane and did not reject him as alleged in the details of his claim.
After an internal hearing, Tlhaganyane was dismissed for misrepresentation and misrepresentation.
miners and construction workers union (Amcu), on behalf of Tlhaganyane, referred the dispute to the CCMA and the arbitrator found that the dismissal was substantively and procedurally fair and that “the penalty of dismissal for dishonesty and misrepresentation was appropriate in the circumstances.”
Amcu, upon review before the Employment Tribunal, argued that the arbitral award should be reviewed and set aside on the grounds that the Commissioner had committed serious wrongdoing in the following cases: finding that Assmang had the right to discipline Tlhaganyane for the allegations in the claim details when he failed to appreciate the importance of Tlhaganyane’s evidence; And in his assessment of the evidence in that he failed to appreciate that it was Telhajanian’s lawyer who drafted the details of the case without him.
In its ruling, Sethene AJ found it “incredible” that Assmang had filed disciplinary charges against Tlhaganyane “based solely on the contents of the lawsuit details which wrongly referred to dismissal rather than suspension”.
Furthermore, had Assmang engaged Tlhaganyane’s attorneys, they would have established that the allegations in the suit details “were not based on the employee’s instructions.”
The acting judge concluded that “the arbitrator committed a reviewable offense by reaching an unprovable conclusion on the evidence before it and that its conclusion falls outside the range of decisions that a reasonable decision-maker could make based on the available evidence.”
The arbitral award was set aside and replaced with an order stating that Tlhaganyane’s dismissal was unfair in substance. He shall be reinstated with immediate effect from the date of his dismissal.