When a judgment issued by the Labour Appeal Court (LAC) commences with: "Two men walk into a bar..." you get the sense you will enjoy the outcome.
If you were the employee alleging unfair dismissal, you would not be disappointed. The employer opposing the litigation, on the other hand, may walk away from the judgment feeling less charitable about the eventual finding. In the case of Dikobe v Mouton & others (JA45/2015), in a judgment delivered on the 15th of last month, the LAC considered the importance of an employer establishing that a workplace rule existed during arbitration proceedings in respect of a dispute regarding unfair dismissal for misconduct.
The court emphasized that an employer must prove the existence of a workplace rule where an employee is alleged to have broken one. It highlighted the difficulty employers face when required to prove the existence of oral rules or instructions and the wisdom of confirming critical standards, norms or policies in writing.
This does not mean all rules must be reduced to writing. To use the familiar example, no employer has to communicate to staff that they may not steal from their employer. However, ambiguous rules or instructions that could be interpreted in more than one reasonable way should be communicated to staff in writing, where possible. This will assist the employer that bears the onus of establishing that the employee breached a valid and reasonable workplace rule.
The employee in question was dismissed from the entertainment giant employing him when he was caught on closed-circuit television paying for drinks with vouchers issued to the casino's very important punters (as referred to by the court). The employee was with such a VIP in the casino at the time. The employee testified that the VIP had given him the vouchers to pay for drinks (for the two of them). The employer argued that the employee, a senior person in their operation, was aware or should have known that he was not allowed to be in possession of the vouchers.
But, as the LAC reasoned, even if that were to be accepted, what does this mean? Does it necessarily mean an employee may not accept receipt of the voucher from a VIP and then pay for drinks for the VIP (or himself)? Can the VIP use them only for his own drink, or is he allowed to use them as payment for his friend's drinks? Is it forbidden to do so when the friend is an employee of the casino? In considering the issue, the LAC highlighted the various interpretations that could be afforded to workplace rules or instructions. The wisdom and value of reducing important rules to writing should not be underestimated.
This is especially true where the rule is not common to many workplaces or where the obligations imposed must be strictly observed.
While no employer needs to tell a new member of staff that he may not bite the hand that feeds it, a rule that states what may be nibbled and what cannot be touched at all should ideally be documented. The LAC held that the arbitrator failed to consider the content, scope and application of the rule. The award he issued was thus not reasonable. In addition, the evidence presented does not demonstrate a breach of any reasonable rule.
So, the employee's dismissal was unjustified. In essence, the LAC position was that the arbitrator was clearly wrong and that the employee should be reinstated without loss of any remuneration, benefits or service entitlements.
When you consider the employee's seniority and the fact that he is now entitled to back-pay from August 2008, the importance of establishing the existence and validity of a workplace rule becomes even dearer.
Gambling on the court accepting what you believe is self-evident is risky. In employment disputes, the house does not always win.
This article first appeared in The Star Workplace on 13 July 2016.