Is it worthwhile belonging to a trade union such as MISA? What does MISA actually do for its members? We answer these questions with a real-life example of how a MISA member was reinstated, retrospectively, after being fired.

Mr X, a MISA member, was employed as a Sales Executive at a prominent Group in the Motor Industry. He was dismissed for misconduct, after being found guilty at an internal disciplinary hearing on the following charge: “Fraud, alternatively dishonesty, in that you used an order that was made out for another vehicle (customer’s vehicle) to valet your personal vehicle.” This is a serious charge if ever there was one.

A charge of dishonesty and/or fraud has unique challenges and, at first glance, answering such a charge seems to be an impossible task, unless you have the right help.

Regardless of the challenge, MISA considered the merits of our member’s case together with relevant case law and reported matters to the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal, and the Constitutional Court and decided to challenge the fairness of the dismissal.

The Courts answered the question as to what constitutes fraud and/or dishonesty and the following assertion was made by the Industrial Court in another matter: “...dishonesty is based on deceit, which is defined as the action or practice of deceiving; concealment of the truth in order to mislead; deception, fraud or cheating.” In layman’s terms it affirms that, should the element of deceit be absent from an employee's conduct, the conduct cannot be equated to fraud and/or dishonesty.

Mr X, confronted with the facts, and in retrospect realised that he should not have used the “unclaimed voucher” for his personal vehicle as his Employer could suffer prejudice. But the question remained: were his actions dishonest and/or fraudulent? Even though he did not hide the actual beneficiary of the voucher from the independent contractor, he did not disclose the use of the voucher to his Dealer Principal.

In fairness, it was considered whether dismissal was in fact an appropriate sanction. In his outcome the Commissioner considered a Constitutional Court judgment of another case, which clearly stated that “trust and the circumstances of the infringement itself” should be the determining factors.

In addition, another case before the Supreme Court of Appeal also made clear that even an act of dishonesty does not necessarily imply that the trust relationship between employer and employee has broken down irretrievably.

In this case, the dismissal of Mr X was found to be substantively unfair. The Commissioner found that the sanction of dismissal, given the circumstances, was too harsh and was therefore not an appropriate sanction.

Through MISA’s help and support, Mr X was retrospectively reinstated and resumed his duties, a sanction that is normally only imposed in the most extreme circumstances.

So when next you hear someone asking what their trade union does for them, tell them about MISA and what we do for you, our members. We are always just a phone call away!

Article by Tiekie Mocke, MISA Legal Department.

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