In the Jhb Labour Court matter of Jijina v CCMA & Telkom SOC (link: http://www.saflii.org/za/cases/ZALCJHB/2018/268.html), Ms Jijina requested the Labour Court to review the decision of the CCMA. The CCMA found that Ms Jijina’s dismissal from her position at Telkom was fair. The CCMA found Ms Jijina’s dismissal to be substantially and procedurally fair.
The facts leading to the CCMA matter revolve primarily around Jijina having been involved in recruitment of a new employee for Telkom. Jijina was involved in the process of shortlisting potential candidates and the interviewing of the shortlisted candidates.
Jijina’s son was shortlisted and upon investigation as to how his name made it onto the shortlist, Jijina and her colleagues had different versions of the events. The eventual shortlisting of Jijina’s son, coupled with the various versions as to how he was shortlisted, lead to Jijina being charged by her employer. Her conduct was found to be contrary to the code and policies of her employer. She was also charged and found guilty of having threatened her senior.
The CCMA found that Jijina in fact acted contrary to Telkom’s policy in respect of her son having landed on the shortlist for the position. The CCMA also found that Telkom’s decision to eventually dismiss Jijina for the charges on which she was found guilty at her hearing at Telkom was fair.
Jijina argued that she had been working for Telkom for 20 years and had had a clean disciplinary record for the entire 20 years. She therefore felt that dismissal was not an appropriate outcome to the hearing by Telkom.
The Labour Court, in reviewing the CCMA’s decision, quoted the following in respect of whether dismissal is an appropriate sanction:
“In determining the fairness of a dismissal, each case is to be judged on its own merits. Item 3(4) of the Code of Good Practice recognises that dismissal for a first offence is reserved for cases in which the misconduct is serious and of such gravity that it makes continued employment intolerable, with instances of such misconduct stated to include gross dishonesty.
When deciding whether dismissal is appropriate, the Code requires consideration, in addition to the gravity of the misconduct, of personal circumstances including length of service and the employee’s previous disciplinary record, the nature of the job and the circumstances of the infringement itself. Other relevant considerations include the presence or absence of dishonesty and/or loss and whether remorse is shown.”
Therefore, it is not sufficient to rely on a long clean record with your employer in trying to mitigate your sanction. There are other considerations to determine if dismissal is appropriate or not and your previous clean record will not take away from such considerations.