14 March 2022 by , and Employment Law Alert

What to do with that ever-complaining employee

It is not uncommon for an employer to have to contend with a disgruntled, agitated employee who  regularly raises grievances and other forms of complaints relating to workplace issues or against managers or other colleagues. While employers are obligated to address grievances, at what point can they draw a line in the sand and say, “no more”. For most employers, this line is a mirage because businesses operate in a rights-based environment and employers fear claims from employees of unfair discrimination, victimisation or what is known in other markets as retaliation. Previously the fear faced by employers was that a complaint that a dismissal following the lodgement of a grievance would be declared automatically unfair. The facts in CEPPWAWU obo Mokoena v Sasol Chemical Operations (Pty) Ltd [2022] 2 BALR 105 (NBCCI) are interesting and worth consideration by employers in a similar position.

The employee was employed as a warehouse controller until his dismissal for incompatibility after using the employer’s grievance procedures to lodge numerous complaints and for continually displaying aggression towards his immediate superior. The employee claimed that his complaint arose because of a disagreement with his performance rating. Some of the background circumstances are that:

  • The employee continued to file grievances after a successful conciliation meeting in which he agreed to “bury old wounds’’. The grievance that he lodged was entertained and a finding was made that the claim was malicious and had no substance.
  • The employee never filed an unfair labour practice dispute over any of his complaints.
  • The employer had gone out of its way to assist the employee, however, he had continuously rejected advice from managers and coaches. Instead, the employee made counter claims of victimisation and raised issues that had previously been dealt with.
  • The employee was moved from one department to another and was placed on secondment in an attempt to address his numerous concerns.
  • The employee was offered assistance through ICAS, and a number of people were also assigned to assist and coach him.

Commissioner’s findings

The employee referred an unfair dismissal dispute to the Bargaining Council. The commissioner found that the employer went out of its way to assist the employee and despite this he continued to disrupt the harmony in the workplace. The employer described this as more than mere disharmony amongst colleagues and rather as a situation of sustained conflict and severe disharmony. The employee, through his numerous grievances, made the employment relationship intolerable. The employer convened an incompatibility enquiry against him and the employee was subsequently dismissed.

In his findings, the commissioner concluded that the employee had disrupted the harmony of the workplace and that this justified his dismissal. He had been counselled but refused to co-operate with remedial measures. When he refused to sign the minutes of the conciliatory meeting it was clear that he did not intend to change his behaviour at all, despite the employer’s understanding that issues were resolved. The termination of his employment was the last resort as the employer had invested a lot of time in dealing with his grievances, which were unfounded and baseless. The Bargaining Council upheld the dismissal as substantively and procedurally fair.

While the Sasol matter does not give an employer the authority to overlook or fail to properly address grievances lodged by employees, the principles of the case now provides employers with a level of protection against employees who abuse grievance procedures and where employers would previously have been reluctant to take firm action against such employees for fear that such dismissals could result in legitimate claims. The avenue of an automatically unfair dismissal is also no longer available to an employee because of the 2020 decision of the Labour Appeal Court (LAC) in DBT Technologies (Pty) Ltd v Garnevska which held that an employee cannot claim an automatically unfair dismissal following the lodgement of an internal grievance.

The net effect is that an employer may now consider terminating such an employee on the basis of incompatibility. Interestingly, in the Sasol matter the employer had introduced incompatibility into its disciplinary processes. It may be prudent for employers to consider incompatibility as a subject in their internal policies.

So, the 2020 LAC decision, which reversed earlier authority on the protected status of internal grievances in the context of dismissals, has perhaps had a further unintended happy consequence for employers as they can now establish a threshold against ever-complaining, unhappy campers who take refuge in raising grievance after grievance in the workplace. Such disgruntled employees should beware that lodging grievances with no merit may ultimately result in a fair dismissal.

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