Legal blow for WesBank as court dismisses application on employee’s unfair dismissal

An application by WesBank to review and set aside an arbitration award that found it guilty of unfairly dismissing a long-serving employee by making his continued employment intolerable has been dismissed by the Labour Court in Cape Town.

The application related to Heinrich Aylward, who was employed as a specialist fraud and risk investigator by WesBank for 17 years before resigning on 10 February 2020.

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On 6 March 2020, Aylward referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), claiming that he had been constructively dismissed by WesBank.

The arbitrator upheld his claim and awarded him 10 months’ remuneration as compensation.

Allegations against arbitrator

WesBank denied that Aylward was constructively dismissed and argued that, due to the non-existence of a constructive dismissal, the CCMA did not have jurisdiction to arbitrate his unfair dismissal claim.

The bank applied to review the arbitration award on the basis that the arbitrator had failed to consider the evidence before her and drew inferences which were not warranted by the evidence, thereby reaching conclusions that were wrong.

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WesBank also claimed the arbitrator entertained evidence that was irrelevant and therefore misconceived the true nature of the inquiry while also failing to apply the correct legal test to determine whether Aylward was constructively dismissed.

Teasing tone

Handing down judgment, Judge Robert Lagrange said Aylward’s line manager, Roshan Jelal, was appointed during 2017 and introduced key performance indicators (KPIs) for the department in which Aylward worked.

Lagrange said that following the introduction of the KPIs, Jelal and Aylward’s working relationship became increasingly strained after an incident in September 2018.

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He said Aylward sent certain emails on 26 September 2018 to Jelal in which he jocularly referred to Jelal as the “master of the highest order”.

Jelal responded requesting Aylward to call him by his name out of respect, but Aylward maintained his previous tone and replied to Jelal, addressing him as “Roshan … The Wise Master of the highest order”.

The judge said although Aylward thought for some reason that his jocular tone was not offensive, Jelal naturally felt the mocking epithets were disrespectful.

Aylward was advised that charges of dereliction of duty and being disrespectful were being considered and he requested Aylward to make a statement about the incident, which he did.

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Judge Lagrange said the objectionable content was made in the course of responding to an email sent by Jelal to the whole department and Aylward’s teasing replies were also circulated to the staff members.

He said Aylward thereafter sent an email to Jelal alone in which he stated that he was “just pissing” with him.

This resulted in Jelal asking Aylward to explain in writing why he had used these terms and advising Aylward he would be bringing disciplinary charges against him.

Apology, anxiety

Lagrange said Aylward duly submitted a statement as instructed in which he apologised for what he had said and offered to share his apology with the other staff who had received the emails.

Lagrange said although the intended charges against Aylward never materialised, the uncertainty of whether the disciplinary proceedings would be instituted led him to start suffering from stress and anxiety and to begin consulting the bank’s employee wellness service provider in anticipation of having to cope with his possible dismissal.

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He said up to that point Aylward had a clean disciplinary record with the bank and there was no evidence his relations with Jelal’s predecessor had been problematic.

Judge Lagrange said it was only on 6 March 2019 when Jelal told him the pending disciplinary action was considered resolved.

Aylward responded by telling Jelal he was relieved to hear that because he had felt “a sword was hanging over him” and used a swear word when remarking that he was not in a “good space” at that moment.

Disciplinary action

Judge Lagrange said Jelal on this occasion did take disciplinary action over the coarse language used by Aylward even though it would appear there was no element of disrespect or insubordination involved, unlike on the previous occasion.

The disciplinary proceedings resulted in Aylward being issued with a final written warning on 17 April 2019.

But Aylward claimed the disciplinary action was unfair and referred a dispute to the CCMA, which issued an award substituting the final warning with a written warning.

Prior to this, Aylward lodged a grievance on 25 March 2019 concerning the bank’s failure to advise him on whether disciplinary action was going to be taken arising from the email exchange on 6 September 2018.

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Six grievances were subsequently lodged by Aylward against Jelal’s conduct and the manner in which he had been treated by him, the bulk of them on 22 August 2019.

Judge Lagrange said at the time of Aylward’s resignation on 10 February 2020, his grievances had not been attended to and it seemed unlikely they would be.

Context

He said Aylward was performing some high-risk investigatory work, which placed his own physical security at risk, and under such circumstances it would not be surprising if his general sense of vulnerability might have been heightened.

Lagrange added that although Aylward had a perception of being attacked by management in many aspects of his work, in some respects his concerns were ill-founded or unnecessarily exaggerated.

However, he said Aylward had other genuine concerns that were not frivolous and which his grievances attempted to address.

He said it was not unreasonable of Aylward to believe he had lost the confidence and trust of the bank having regard to the overall effect of its conduct, such as:

• The drastic performance downgrade that was remarkably at odds with a high performance record over many years, which was not adequately explained;
• The lack of preparation and notice he was afforded when a performance improvement plan was implemented;
• Aylward’s inexplicable exclusion from a social media group the rest of his department belonged to;
• The head of department’s failure to express any personal concern about an assassination attempt on a witness Aylward was about to consult, given his vulnerability as the complainant in the case;
• The unwillingness of the bank to make any effort to see if he could be transferred, bearing in mind his long prior work history;
• A failure to even motivate why an application for compassionate leave was rejected without discussion;
• Jelal’s personal distrust of what Aylward told him and his recording of their phone conversations;
• The negative comments of the bank’s employee relations hinting that the employment relationship was at an end or implying that the employer wanted to end it; and
• The effort spent on an exhaustive investigation of potential misconduct by Aylward, which could not have contrasted more starkly with the bank’s failure to embark on any investigation of his grievances.

Judge Lagrange said he was satisfied, in the context of his long service and commitment to investigatory work and considered as a whole, that anyone in Aylward’s position would probably have felt that they were unlikely to ever have their grievances aired, let alone resolved, and that there was no reasonable prospect of some kind of restoration of a workable relationship based on mutual confidence and trust.

He was satisfied that WesBank had made the employment relationship intolerable and Aylward was entitled to regard his resignation as a constructive dismissal.

This article was republished from Moneyweb. Read the original here