Picture: 123RF/LUKAS GOJDA
Picture: 123RF/LUKAS GOJDA

In common law employers and employees have the obligation to treat each other fairly and within the law.

 For its part, the employer is required to pay the employee the agreed remuneration by the normal pay date. The employer is also required to employ the employee in reasonable working conditions and to avoid rendering the employment circumstances intolerable. Failing this, the employee is entitled to seek legal remedy.

 The employee has the obligation towards the employer to refrain from misrepresenting his/her qualifications and to carry out his/her work to the best of his/her ability. The employee is also obliged to behave in an honest and reasonable manner, to serve the interests of the employer and to refrain from rendering the employment relationship intolerable. Failing this, the employer has a right to legal remedies including discipline, dismissal and even court action.

 While both parties have legal recourse against the infractions of the other they must beware of the dangers of taking such action. That is, legal action can be extremely expensive. Many lawyers charge high fees for representing parties at the CCMA, bargaining councils or at labour court.

 Sometimes, legal fees are paid to attorneys or advocates for representation services at the CCMA but the arbitrator, on the day of the case, evicts the lawyer from the hearing because the case in question does not, in the discretion of the arbitrator, require a legal mind. As such arbitrator discretion does not apply to union representation more and more employers are joining employers’ organisations (unions for employers) in order that they can be represented at arbitration by an employers’ organisation official.

Fairly often the judge or arbitrator sometimes orders the losing party to pay the legal costs of the winner even if the loser’s case was a reasonable one. It appears that this practice may be carried out as a means of deterring parties from taking cases to court.

 Should it be found in court, at the CCMA or at bargaining council that a party has referred a frivolous or vexatious case, that party is likely to be required to pay the legal costs of the winner. In this context, a frivolous case is one that is devoid of seriousness, sense or worth. A vexatious case is one that is brought more to cause annoyance than because it has valid grounds.

 A party may also be punished for bringing a case to the CCMA with “dirty hands”. This means that the party bringing the complaint has broken a rule or transgressed the law. For example, an employer may be accused by the employee at the CCMA of retrenching him unfairly. However, the employer may be able to show that the employee’s disloyal or malicious behaviour was the cause of the financial backslide and the need to cut back on staff. This misbehaviour of the employee would then mean that he has come to the CCMA with dirty hands. This is likely to count against them at the arbitration.

Alternatively, where the employee claims unfair dismissal at the CCMA, but is proved to have committed the misconduct for which they were dismissed, their “dirty hands” are likely to disqualify them from the right to relief from the CCMA even if the employer was partly at fault.

For example, in the case of Simani vs Coca-Cola Fortune (2006) the employee was dismissed for dishonesty. The arbitrator found that the employee, who was well aware of his guilt, nevertheless approached the CCMA. This was unacceptable as it was not a genuine dispute. The employee came to the CCMA with dirty hands and, in addition to having his case dismissed, was ordered to pay the respondent’s costs resulting from the losses that he had caused.

In Saccawu obo Haliwell vs Extrabold t/a Holiday Inn Sandton (2012), the applicant employee had refused to obey an instruction from the respondent’s GM. She then filed a grievance against him and posted derogatory comments about him on her Facebook page. The applicant was called to a disciplinary hearing and dismissed for “gross insubordination” and “disrespect”.

The commissioner noted that the respondent had done its best to resolve the applicant’s complaints about the GM. After concluding that she could no longer work with him, management had decided that she should be transferred to another  department. Her response was an uncivil e-mail to the manager who had communicated the decision. The commissioner rejected the applicant’s claims that she had written the Facebook messages in a fit of anger and that her privacy had been invaded.

The commissioner also rejected the applicant’s claims that she had not understood the charge sheet and that she had not given evidence in mitigation when invited to do so because she did not understand the meaning of that term. The e-mail and internet communications were written in English, and contained phrases more sophisticated than “mitigating factors”.

The applicant’s dismissal was ruled substantively and procedurally fair. The arbitrator found that she had no justification for having made the public derogatory comments about her GM and for having disrespected him.  She had come to the CCMA with  “dirty hands” and was ordered to pay the costs of the arbitration.

Considering all the dangers of the dirty hands principle, parties should think carefully before taking legal action and avoid making the decision to go to CCMA or court merely because they are angry.

Parties should avoid misusing the CCMA as a means of extorting money out of the other party and ensure that they have valid reasons for the legal action they take. This means that they need to gather solid proof of their allegations and check that their own hands are clean before pointing a finger at the other party.

• Israelstam is CEO of Labour Law Management Consulting.

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