A recent case from the Labour Appeal Court (LAC) (Zapop (Pty) Ltd v CCMA & Others) is of interest for two reasons. Firstly, it has shown that, once an arbitrator in an unfair dismissal dispute has found the dismissal to be too harsh, there is limited scope to overturn this finding in court. Secondly, it has clarified that an arbitrator dealing with a dismissal dispute can also determine the employee’s claim for commission at the same time and that there is no cap to such claims.
The LAC considered the correctness of a finding by a CCMA arbitrator that the dismissal of an employee (who, in this case, was a commission earner) was unfair. The employee in question was dismissed for the disclosure of confidential information to a competitor of her employer, and for the disparagement of her two managers in private email correspondence. The LAC agreed with the Labour Court, which had previously held that the arbitrator was correct in finding that although the employee was guilty of misconduct, dismissal was not warranted in the circumstances. The LAC came to this conclusion, as it was shown that the information which was disclosed was not, in fact, particularly confidential, was disclosed two years earlier and had had no negative impact on the business of the employer, and that the party to whom the disclosure was made was not in fact a competitor of the employer. In relation to the disparaging of the employee’s managers, the LAC held that the remarks made were trivial, were not made for public consumption, and were also made a long time ago. In light of this, the LAC confirmed the finding of the Labour Court that, although these incidents constituted misconduct, the gravity of the misconduct did not warrant dismissal. This is a clear indication by the LAC that, even when misconduct has been proven, an employer should only resort to dismissal as a measure of last resort, and only in cases where the misconduct is serious. The case makes clear that it will be difficult for an employer, who brings a review of an arbitration award to the Labour Court, to overturn a decision of an arbitrator that a dismissal was unfair in such circumstances.
In relation to commission payments, the LAC confirmed that the CCMA does have the requisite jurisdiction to deal with claims for commission, which are brought together with a claim for unfair dismissal. This was on the basis that, even though the basic conditions of employment legislation does not provide specifically for commission payments and entitlements thereto, it provides that ‘remuneration’ must be paid when due and, in this instance, the commission qualified as remuneration under the legislation. The LAC also confirmed that there is no cap to the amount of commission that the CCMA can award an employee in these circumstances, as long as the employee can prove her entitlement to the amount claimed.
A recent case from the Labour Appeal Court (LAC) (Zapop (Pty) Ltd v CCMA & Others) is of interest for two reasons. Firstly, it has shown that, once an arbitrator in an unfair dismissal dispute has found the dismissal to be too harsh, there is limited scope to overturn this finding in court. Secondly, it has clarified that an arbitrator dealing with a dismissal dispute can also determine the employee’s claim for commission at the same time and that there is no cap to such claims.
The LAC considered the correctness of a finding by a CCMA arbitrator that the dismissal of an employee (who, in this case, was a commission earner) was unfair. The employee in question was dismissed for the disclosure of confidential information to a competitor of her employer, and for the disparagement of her two managers in private email correspondence. The LAC agreed with the Labour Court, which had previously held that the arbitrator was correct in finding that although the employee was guilty of misconduct, dismissal was not warranted in the circumstances. The LAC came to this conclusion, as it was shown that the information which was disclosed was not, in fact, particularly confidential, was disclosed two years earlier and had had no negative impact on the business of the employer, and that the party to whom the disclosure was made was not in fact a competitor of the employer. In relation to the disparaging of the employee’s managers, the LAC held that the remarks made were trivial, were not made for public consumption, and were also made a long time ago. In light of this, the LAC confirmed the finding of the Labour Court that, although these incidents constituted misconduct, the gravity of the misconduct did not warrant dismissal. This is a clear indication by the LAC that, even when misconduct has been proven, an employer should only resort to dismissal as a measure of last resort, and only in cases where the misconduct is serious. The case makes clear that it will be difficult for an employer, who brings a review of an arbitration award to the Labour Court, to overturn a decision of an arbitrator that a dismissal was unfair in such circumstances.
In relation to commission payments, the LAC confirmed that the CCMA does have the requisite jurisdiction to deal with claims for commission, which are brought together with a claim for unfair dismissal. This was on the basis that, even though the basic conditions of employment legislation does not provide specifically for commission payments and entitlements thereto, it provides that ‘remuneration’ must be paid when due and, in this instance, the commission qualified as remuneration under the legislation. The LAC also confirmed that there is no cap to the amount of commission that the CCMA can award an employee in these circumstances, as long as the employee can prove her entitlement to the amount claimed.
A recent case from the Labour Appeal Court (LAC) (Zapop (Pty) Ltd v CCMA & Others) is of interest for two reasons. Firstly, it has shown that, once an arbitrator in an unfair dismissal dispute has found the dismissal to be too harsh, there is limited scope to overturn this finding in court. Secondly, it has clarified that an arbitrator dealing with a dismissal dispute can also determine the employee’s claim for commission at the same time and that there is no cap to such claims.
The LAC considered the correctness of a finding by a CCMA arbitrator that the dismissal of an employee (who, in this case, was a commission earner) was unfair. The employee in question was dismissed for the disclosure of confidential information to a competitor of her employer, and for the disparagement of her two managers in private email correspondence. The LAC agreed with the Labour Court, which had previously held that the arbitrator was correct in finding that although the employee was guilty of misconduct, dismissal was not warranted in the circumstances. The LAC came to this conclusion, as it was shown that the information which was disclosed was not, in fact, particularly confidential, was disclosed two years earlier and had had no negative impact on the business of the employer, and that the party to whom the disclosure was made was not in fact a competitor of the employer. In relation to the disparaging of the employee’s managers, the LAC held that the remarks made were trivial, were not made for public consumption, and were also made a long time ago. In light of this, the LAC confirmed the finding of the Labour Court that, although these incidents constituted misconduct, the gravity of the misconduct did not warrant dismissal. This is a clear indication by the LAC that, even when misconduct has been proven, an employer should only resort to dismissal as a measure of last resort, and only in cases where the misconduct is serious. The case makes clear that it will be difficult for an employer, who brings a review of an arbitration award to the Labour Court, to overturn a decision of an arbitrator that a dismissal was unfair in such circumstances.
In relation to commission payments, the LAC confirmed that the CCMA does have the requisite jurisdiction to deal with claims for commission, which are brought together with a claim for unfair dismissal. This was on the basis that, even though the basic conditions of employment legislation does not provide specifically for commission payments and entitlements thereto, it provides that ‘remuneration’ must be paid when due and, in this instance, the commission qualified as remuneration under the legislation. The LAC also confirmed that there is no cap to the amount of commission that the CCMA can award an employee in these circumstances, as long as the employee can prove her entitlement to the amount claimed.