The labour court in SA has upheld the dismissal of a pharmacist who gave exorbitant discounts, over-ruling a curious ruling in his favour by the CCMA
Read the judgment
A RECENT decision by SA’s labour court has left me wondering how some pharmacies stay solvent given the extraordinary discounts routinely offer to certain clients.
The case involves a pharmacist, Siyabulela Zulu, employed by Madeira Pharmacies at the start of 2010. Six years later, dismissed for misconduct related to the issue of high discounts, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
After the arbitrator found Zulu’s dismissal unfair and awarded him compensation the company took the matter to the labour cour. There, the presiding judge, Dephny Mahosi, recapped the issues that led to his contentious dismissal.
She said Zulu had faced three “charges”, starting with insubordination. He was instructed by the managing director to “discontinue giving customers more than 10 percent discount”, and told to inform staff members likewise. But he ignored these instructions. He had further been insolent in the comments he made indicating his refusal to comply. Finally, there was “dereliction of his duties” in that, despite being the responsible pharmacist in charge, he and the staff still continued to give high discounts to clients.
Zulu “pleaded guilty to the offence of continuing to give 30 percent discount”. Nor did he deny that he had not told the staff to stop giving high discounts.
Strangely, however, though he found Zulu had behaved very badly, that he had challenged the authority of Madeira Pharmacy’s MD and had caused financial harm to the employer, the arbitrator still ruled that his dismissal was unfair.
Zulu’s conduct “amounted to gross insubordination”, said the arbitrator, in that he offered a 30 percent discount to three doctors and allowed other staffers to do the same, despite knowing that such a discount caused the employer to suffer financial loss on some items.
The arbitrator also considered Zulu’s justification for not cutting back on the discounts offered these clients: “he gave 30 percent discount because the customers were used to it”. Rejecting that claim, he said that the instruction to Zulu had been clear. He could have sought authority from the employer to continue offering these clients the previous discount but had not done so. This amounted to a challenge to the authority of the company and “caused financial harm” to the employer.
Why then, despite all these findings and a conclusion that he was guilty of serious misconduct, did the arbitrator find Zulu’s dismissal unfair? Zulu claimed that the company had been inconsistent in its approach and that another staffer had given a 30 percent discount subsequent to Zulu leaving the company, and yet that staffer had not been dismissed.
According to the employer’s case at the labour court, however, the arbitrator did not take into account that the employer did not know about the subsequent 30 percent discount incident. It took place after Zulu was dismissed and the arbitrator “simply accepted the customer’s receipt” showing that such a discount had been given. Zulu did not show that the company had made an arbitrary selection of whom to discipline over the discounts and until the receipt was produced at the CCMA, the employer “was not aware of the misconduct committed” by the other staff member.
Commenting on the award, the judge said there was no basis for the arbitrator to have “trivialised” the seriousness of Zulu’s misconduct, his gross insubordination, his dereliction of duty and the financial loss resulting from his behaviour. Zulu owed a duty of care to the employer and in all these circumstances the sanction of dismissal was recognized as fair and appropriate by the Labour Relations Act.
The judge thus held the arbitrator’s ruling was not one that a reasonable decision-maker could have arrived at and she set it aside, concluding instead that the dismissal was both substantively and procedurally fair.
- Financial Mail, 14 January 2019