BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za
Many employers like using Dereliction of Duty as a disciplinary charge when they want to inflict strong punishment employees because the phrase ‘dereliction of duty’ has a serious and damaging ring to it, and the penalty for a first offence of gross dereliction of duty could be dismissal.
However, employers need to be extremely careful before using this charge because it has a very specific meaning referring to an intentional or conscious failure of an employee to do his/her duty. Collins Concise dictionary defines dereliction as “conscious or willful neglect” (especially of duty). The Dictionary of English Synonyms lists, as synonyms for dereliction, “abandonment” and “desertion” which terms have a connotation of intentionally or knowingly failing to do one’s duty. In practice this type of misconduct occurs fairly frequently. Examples include situations where the employee:
- Abandons an asset of the employer in a place where it as at risk. For instance, a company driver might leave the company vehicle in order to visit a friend despite being well aware that the location is a crime ridden neighbourhood
- Ignores the clients he/she is supposed to be serving in order to finish off the cashing up or administrative work early
- Knowingly fails to switch on the safety device of a machine operated by a subordinate or colleague
- Downloads data from a website that the employee knows is infested with viruses
- Fails to implement the spyware security procedures because he/she is in a hurry to leave
- Deserts his post as a security officer without an acceptable reason
- Gives the strong room keys to an unauthorized person in order to be able to go on a long lunch.
Dereliction of duty cannot be used in every case where employees have performed their work poorly or failed to carry out instructions. Such problems can very often result, not from intentional or conscious decisions, but from lack of skill, faulty equipment, misunderstanding of the instruction, overzealousness or other less sinister reasons. Regardless of how seriously the latter list of causes might be viewed, they do not constitute dereliction of duty because they lack the element of intent or consciousness.
Furthermore, even where an employer truly believes that dereliction has occurred, the employer still has the onus of proving that it was the dismissed employee who was responsible. Scapegoating an employee for a botch up will not be accepted at CCMA.
In the case of Bohloko/Central University of Technology – Free State  5 BALR 465 (CCMA) the applicant was fired for negligent handling of student enrolments and failure to pursue charges of sexual harassment against students. The Commissioner found that the administrative bungling for which the applicant had been blamed could be attributed to other employees. Several critical witnesses who could have contradicted the applicant’s evidence had not been called by the university, which left her version uncontested. The investigators had recommended that several employees should be disciplined, but only the applicant had been targeted. This was a clear breach of the parity principle. The applicant’s dismissal was, accordingly, substantively unfair. The Commissioner reinstated the employee with backpay of 12 months’ remuneration.
The main danger is that dereliction of duty is too often used as overkill when a charge of ordinary poor performance or negligence would do. However, the opposite mistake is also made. This is where the employee’s poor performance is permeated with willful failure to do his/her duty with serious consequences but the employer disciplines the employee for mere poor performance and gives him/her a warning. This gives the employee the wrong message that what he did was not serious. It also may set a precedent for other employees who might ‘get away with murder’ because the first case set too low standards on which performance is measured. The employer will have then to put up with a series of repeated cases of dereliction of duty and the damage it causes before being able to dismiss the employee.
In the light of the above dangers employers are advised to use experts in labour law to:
- Draw up their workplace rules and standards of performance
- Train management in implementing discipline and control
- Analyze suspected infringements in order to choose the legally appropriate wording for the charges against errant employees.
Management’s failure to ensure fairness can itself be seen as dereliction of duty.
To buy our E-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via email@example.com or 011-8887944 or 0828522973.