HR manager who chaired external hearing while on sick leave dismissed

THE Labour Appeal Court has ruled that a senior human resource (HR) professional's dismissal was substantively fair, despite procedural issues, after she claimed to be unwell to leave work early but then chaired a disciplinary hearing at another company where she falsely presented herself as HR Director.

The court upheld an earlier ruling of the Labour Court that refused to set aside an arbitration award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), IOL reported.

Nontobeko Lliona Machi, had been employed by CHEP SA, a subsidiary of Brambles, as a senior human resources business partner from May 2016.

The events leading to her dismissal stemmed from July 2017, when a colleague was suspended for alleged fraud and Machi requested permission to leave a company awards event in Cape Town early.

She told her manager she was unwell and emotionally shocked due to the recent suspension of her colleague. 

Permission was granted, and she flew back to Durban during business hours.

It later emerged that upon landing, Machi did not go home or return to CHEP’s offices. Instead, she chaired a disciplinary hearing at a company known as Zala Corporates and issued a finding in which she described herself as the company’s “HR director”, despite not being a director or employee of that entity.

Following an internal investigation, CHEP charged her with three counts of misconduct, including gross negligence, dishonesty relating to her illness, and failing to disclose a conflict of interest. She was found guilty at the disciplinary hearing and summarily dismissed.

Machi referred an unfair dismissal dispute to the CCMA. The arbitrator found that, while her suspension and dismissal were procedurally unfair, she was not guilty of the three formal charges as framed.

However, the arbitrator identified what was described as an “unexpressed fourth allegation” - namely that Machi had abused the employer’s trust by claiming to be unwell to leave work and then performing duties for another company during working hours, holding herself out as its director.

On that basis, the arbitrator concluded that the misconduct destroyed the trust relationship and rendered the dismissal substantively fair. Machi was awarded two months’ salary as compensation for procedural unfairness.

Machi challenged the arbitration award in the Labour Court, arguing that the arbitrator had committed a gross irregularity by effectively creating a new charge that was not part of the original disciplinary notice. The Labour Court dismissed the review application.

On appeal, Machi maintained that fairness must be assessed strictly against the charges listed in the dismissal letter. She argued that the arbitrator was not entitled to formulate a new ground of misconduct to justify the dismissal.

CHEP, however, contended that her conduct in chairing the Zala disciplinary hearing during working hours was central to the employer’s case from the outset and formed part of the factual matrix underpinning the original charges.

The Labour Appeal Court agreed with CHEP. It held that the so-called “unexpressed fourth allegation” was not a new or unrelated charge, but rather a concise description of the core misconduct that had been ventilated throughout the disciplinary hearing and arbitration.

What matters, the court said, is whether the employee had adequate notice of the substance of the allegations and a fair opportunity to respond.

Acting Judge Maletsatsi Mahalelo found that Machi was fully aware that her conduct in July 2017 - particularly chairing a disciplinary hearing for an external entity during company time after claiming illness — lay at the heart of the employer’s case. She had addressed this issue in evidence and argument and could not claim prejudice.

Given her senior HR role, where trust and integrity are paramount, the court held that her actions constituted a serious breach of trust. Even if a disciplinary code might ordinarily prescribe a lesser sanction for private work during office hours, the context and seniority of her position justified dismissal.

The appeal was dismissed, and the court made no order as to costs.

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