The “fishpond” sanction that backfired
We know from the Labour Court decision in Avril Elizabeth Home for the Mentally Handicapped v CCMA that disciplinary hearings can be very informal.
We also know that while line managers may have undergone some training to act as chairpersons, they are not lawyers. They are mostly guided by the employer’s disciplinary code.
Most disciplinary codes indicate what the appropriate sanction would be in respect of a particular transgression. There must be a good reason to deviate completely from a recommended sanction.
The Labour Court held in Van Tonder v Sibanye Stillwater Ltd and Others (JR 651/20 – handed down on19 September 2023) that a deviation from the recommended sanction can come back to bite the line manager.
When some of the employees who reported to the acting shaft engineer (Hendrik van Tonder) arrived late for a safety meeting, they were instructed to report to Van Tonder’s office for appropriate disciplinary action.
Van Tonder gave them a choice between facing a formal charge of misconduct or submerging their heads in the fishpond on Sibanye’s premises. They chose the fishpond option.
Fellow employees took photos and videos when their heads were submerged in the fishpond. Afterwards the transgressors complained to the employer that they were traumatised by this sanction which humiliated, degraded, embarrassed and belittled them.
Sibanye acted on these complaints by charging Van Tonder with the following act of misconduct: “Behaviour prejudicial to the maintenance of good order and/or behaviour unbecoming of a senior employee in your position in that you on 4 October 2018 at Ikamva Shaft instigated and/or subjected and/or condoned and/or allowed subordinates to submerge their heads in a fishpond instead of facing disciplinary action whilst being photographed and recorded by more than one person.”
Van Tonder was found guilty and dismissed after 32 years of service.
When the CCMA upheld the dismissal, Van Tonder turned to the Labour Court, but found no joy there either. The Labour Court described the facts as “disheartening”, and would not accept that Van Tonder had merely followed the example set by some managers and supervisors who instructed their subordinates to submerge their heads in the fishpond as an alternative to discipline.
The Court found that this was not a common practice uniformly applied at the workplace where approximately 90,000 employees were employed. The evidence further showed that some senior employees at the head office were unaware of it.
The Court further found that it was not a reasonable practice and, further, that all employees had the right to the protection of human dignity. In the circumstances the Labour Court confirmed Van Tonder’s dismissal.
The purpose of a disciplinary code and its recommended sanctions is to ensure consistency in the application of disciplinary steps. Chairpersons should not ignore the employer’s disciplinary code and simply impose sanctions of which the employer has no knowledge – and for which there is no justification in law.
