Innscor Africa clerk fired for negligence

Pizza Inn, Nandos, Bakers Inn, Steers and Vasili and Sons.
Nyathi was responsible for producing daily report sheets (DRS) and submit them to the complex and shop managers. The DRS were not submitted to the managers during the period April 1, 2009 to April 21, 2009. As a result, Nyathi was charged with habitual and neglect of duty. She appeared before a hearing officer who found her guilty and imposed a dismissal penalty. Nyathi appealed to the Appeals Authority who upheld the decision of the hearing officer. She referred the matter to a Labour

Officer who failed to conciliate and referred the matter for arbitration. The arbitrator found that “there was insufficient evidence that Nyathi committed the offence she was alleged to have committed.” He ordered her reinstatement or payment of damages in lieu of reinstatement. Aggrieved by this ruling, Innscor appealed to the Labour Court.

It argued that the arbitrator made a finding of fact based on a different charge of poor performance, which she was not charged with in the matter in question. Innscor further argued that the arbitrator misinterpreted the evidence placed before him and made a decision, which was grossly unreasonable and irrational. Labour Court president Ms Loice Matanda-Moyo, noted that the arbitrator stated the circumstances under which an employee could be dismissed for unsatisfactory work.

Ms Matanda-Moyo said: “The arbitrator found that such circumstances were not satisfied and hence the dismissal was unfair. Habitual and substantial neglect of duty is a situation where an employee fails to do what is required of him or her.” She pointed out that when it is habitual, it means it has been going on for a long time. Ms

Matanda-Moyo said when it is substantial, then it means that the employee fails to do his or her core duty.
“On the other hand, unsatisfactory work performance is where an employee is performing his or her duties but not to the expected standard. The two charges are quite different. In this case the arbitrator considered the wrong charge,” said Ms Matanda-Moyo.

She said the arbitrator did not consider the charge “habitual and substantial neglect of duty” but considered the charge of unsatisfactory work performance. Ms Matanda-Moyo set aside the decision of the arbitrator and confirmed Nyathi’s dismissal.