Background:
John Smith is a Sales Manager at Pens & Paper Ltd., a company specialising in stationery products. John has been employed with the company for three years and has consistently demonstrated a good performance record. In addition to his professional life, John actively participates in political activism and has participated in several protests against government policies.

On Monday, John informed his supervisor, Mary Jacobs, that he was unwell, suffering from a fever and a sore throat, and requested sick leave. He assured Mary that he would submit a medical certificate as proof of his illness. Mary granted the sick leave and wished him a quick recovery.

However, on Monday evening, Mary watched a news report that showed footage of a protest in front of the Parliament building, where protesters clashed with the police. To her surprise, she identified John in the crowd, wearing a distinctive red jacket and holding a placard that read “Down with the dictatorship.” Mary was outraged by what she perceived as John’s dishonesty and misuse of sick leave.

As a result, Mary decided that disciplinary action should be taken against John for misconduct and dishonesty, believing that he had breached the company’s code of conduct and violated the trust placed in him. John is notified of the allegations made against him and that he will be allowed to present reasons why his dismissal should not be considered.

John is shocked and denies being at the protest, stating that he was at home resting and could provide a medical certificate to prove his illness. He accused Mary of fabricating evidence.

Task: Preparing for the Disciplinary Enquiry

You will represent either Pens & Paper Ltd. (the employer) or John Smith (the employee) in a simulated disciplinary inquiry. You must prepare an argument in support of or against the fairness of John’s dismissal.

Instructions:

1. Prepare your opening statement, outlining the key facts of the case and the main arguments you will present.

2. Anticipate the opposing party’s arguments and prepare counterarguments.

Labour Practice 3.2 Assignment 2 Page 1 of 2
3. Review relevant case law and legal principles that support your position.

4. Be ready to address additional questions from the presiding officer regarding both legal and factual issues.

Questions to Consider:

• Does John’s participation in the protest, if proven, constitute misconduct
that justifies dismissal?

• How do the Labour Relations Act 66 of 1995 (LRA) and other relevant legislation apply to this case?

• What precedent does South African case law set for dismissals involving off-duty conduct and political expression?

• How might the chairperson assess the fairness of the dismissal in terms of both substantive and procedural fairness?

➢ What are the strengths and weaknesses of your case?

➢ How can you effectively persuade the presiding officer regarding the fairness or unfairness of the dismissal?

➢ What mitigating/aggravating factors should be included?

Answers to Above Law Questions 

Answer 1: An analysis of the given case study indicates that Mr John Smith is an employee of Pens and Paper Limited and he has achieved a good performance as his role of sales manager. However there are allegations on Smith that he has engaged in personal activities outside of his work life.