The question of when do false and unsubstantiated allegations lead to dismissal, was answered in the matter of NUMSA obo Baloyi and Others v O-Line (2019) where the Commission for Conciliation, Mediation and Arbitration (CCMA) had to decide whether an employee who made false allegation of racism against another employee may be dismissed.
In this matter three employees whom was employed with O-Line (PTY) LTD was caught by the CEO of the company playing cards whilst on their tea break outside the premises and reprimanded.
The employees alleged that the CEO swore at them, called them names, and made racial remarks towards them.
The employees further alleged that they were distressed by such behavior they reported the matter to their NUMSA shop steward whom suggested they complete a grievance form to report the conduct of the CEO.
The shop steward completed the grievance form and stated that he would submit the grievance on their behalf however it was never submitted to the company.
The employees was disciplined with a final written warning in respect of insubordination relating to their card game on the 17th October 2018.
The shop steward informed the employees on the day of the inquiry that he had failed to submit the grievance form to the company and that the employees should do so on the day of the inquiry 17th October 2018.
The company was of the opinion that such allegations and grievance was false and an attempted to avoid the disciplinary action taken against the employees on the 17th October 2018.
As a result the employees was charged at a second inquiry for deliberately supplying incorrect and or falsified information regarding the CEO’s statements to the employees and subsequently dismissed thereon.
The employees referred the matter to the CCMA and alleged that the CEO made racial remarks towards them and that some of the remarks were made in Afrikaans by the CEO.
O-Line in response stated that such allegations are false and unsubstantiated, that the CEO denies making such statement and further that the CEO is English speaking, does not speak Afrikaans and as a result would not make such remarks in Afrikaans.
The commissioner requested that the CEO read the alleged racist remarks in Afrikaans, which he struggled with.
The commissioner stated that he is of the opinion that NUMSA is well aware of the avenues available in such matters, that they did not seek genuine action to be taken and as a result attempted to use such allegations merely as a defense in the employees’ disciplinary inquiry on the 17th October 2018.
The commissioner found that on a balance of probability that the allegations were false and that a guilty finding by the chairperson was correct.
In respect of dismissal, the commissioner considered the severity of such false allegations and the harm that false allegations of racism may cause.
The commissioner found that such allegation in our racially charged society are severely damaging to a company and the addressee of such allegations, which can result in irreparable reputational harm.
The commissioner found that the disciplinary inquiry was substantially and procedurally fair and that the dismissal of the employees stood ground.
Please feel free to contact our offices on 0861 737 263 should you require any assistance or for us to conduct your disciplinary inquiries.