Substantive dismissal of a senior employee
 

28-JUN-07
Breugem v De Kock NO & others
[Procedure/2 Disc Hearings] Case No. C 608 / 05
Judgment Date: 11 June 2006
Jurisdiction: Labour Court, Johannesburg
Judge: Revelas J
Subject: Appeal and Review

Issue:

The employer convened a disciplinary hearing in relation to the applicant, the outcome of which was that the parties must reach a settlement or the applicant would be dismissed. At the settlement meeting, the applicant claimed there had been financial mismanagement and demanded R5 million. The employer convened a second disciplinary hearing and dismissed the applicant. He sought a review of that decision.

Summary of Facts:

The applicant was the managing director of the respondent. He wrote a book about a court case involving the respondent and the latter suspended him pending a disciplinary hearing. The arbitrator’s resolution of that hearing was that the parties should ‘meet to agree on a financial settlement agreement regarding their parting of ways and a failure to do so would result in the dismissal of the applicant’.

The parties met and the employer offered six months’ remuneration. The applicant claimed at this meeting that representatives of the employer had been manipulating the finances and he demanded R5 million. At the end of the meeting he told one representative ‘there are no golf courses in prison’.

The employer then charged the applicant with ‘dishonesty, attempted blackmail or extortion’. A second disciplinary hearing was convened and the applicant was dismissed.

Summary of Judgement:

The Court held that the effect of the first order was clear; if the matter could not be resolved financially, the applicant would be dismissed. Since it had not been resolved financially he had effectively already been dismissed and the employer should not have convened a second disciplinary hearing.

It also held that the chairperson of the second disciplinary hearing failed to properly consider whether the employer was entitled to charge the applicant with misconduct for a second time, even if the charges were different.

The Court examined the first hearing and ruled that, ‘writing a book about a court case involving (the employer) is the exercise of a right of freedom of speech, an act that would seldom warrant the dismissal of a managing director’. It found that the dismissal, as regards to the sanction imposed, was unfair. In relation to the second hearing, the Court determined that the applicant should not have been charged because the employment relationship technically no longer existed and that this dismissal was also unfair.

The Court ordered that the dismissal was substantively unfair. The Court declined to award the applicant the maximum compensation of 12 months ‘because the applicant’s conduct (at the second meeting) was quite unacceptable and which displayed avarice on his part’. In awarding the applicant 9 months remuneration with costs, the Court also took into account what the parties might have settled for.