Legal Effects Of Condonation In Employment Relations By Michael Dugeri

Condonation means the forgiveness, purposeful disregard, or
tacit approval by a victim of another’s illegal or objectionable
act, especially by treating the other person as if nothing
happened.

In law, the term condonation is more commonly associated with
matrimonial proceedings, in which case it is understood as the
voluntary pardoning by an innocent spouse of an offense committed
by his or her partner conditioned upon the premise that it will not
happen again. Condonation, which is used as a defence in divorce
actions based on fault grounds, is strongly supported by public
policy. The institution of marriage and its preservation are
considered essential for the stability of society, and therefore
condonation is encouraged to promote the notion that marriages
should not be dissolved easily.

Employment relations have been likened to marriages, for a
number of reasons. It is often said that successful labour
relations are more like ‘a marriage, not a boxing match’. It is
expected therefore that both parties will sometimes have to
overlook certain infractions from the other in the interest of the
relationship. However, what happens if the forgiving party later
regrets the decision to forgive and decides to enforce their rights
against the forgiven party in respect of the forgiven offence? Are
they allowed to do so and within what timeframe? What in fact,
constitutes condonation in employment relations?

The answers to these questions will usually depend on the
context. Hence, the answers will be provided by examining a few
decided court cases on the issue of condonation in employment
relations. To begin with, condonation may either be by the employer
or employee; it may also be express or implied. Where condonation
is express, the offended party expressly waives his right to sue or
complain, by stating so in writing or where the timeframe to react
to the offence, as provided by law or contract, has elapsed.. In
cases like these, there is little difficulty in establishing
condonation. The situation is however nuanced in cases where
condonation is implied. That is, where the offended party seems to
have forgiven or overlooked the offence/breach but without actually
doing so.

In anticipation of situations of implied condonation, some
employment contracts (like most other commercial contracts) contain
a “no waiver” clause, which typically provide that delays do not
adversely affect the rights of a party to enforce the terms of the
contract. However, is the offending party allowed to simply move on
with the relationship without knowing whether or not his breach may
be relied upon at some point in future to apply disciplinary
measures like suspension or even termination? On the other hand,
when a party to a contract waives a breach of
that contract by the other party, it voluntarily abandons
its legal rights to enforce the contract, or to claim any
remedy, in relation to that breach. A waiver must be
clear, but may be oral or written.

Another major consideration in determining condonation is if the
offended party intends to seek remedy outside the workplace, like
suing to enforce its rights or demand damages. In such a case, one
needs be mindful of “Limitation Law”, that is, the law that a suit
must be commenced within a specific period of time from when the
injury or omission, causing the damage or loss, arose or occurred.
Grievances need to be settled in time while the evidence in support
of the claim, or the defence to a claim, is/are still fresh. Not
commencing legal action within the statutorily specified period
extinguishes the right to seek remedy. Employment contracts are
classed as simple contracts. Legal actions based on simple
contracts (like recovery of debts and arrears of interest, tortuous
malfeasance which includes damages for negligence or breach of a
duty of care, account stated, etc.) must be commenced within a
period of six (6) years of the occurrence of the injury, loss or
damage.

However, if the available remedy is internal, like an employer
subjecting an erring employee to its disciplinary procedure,
condonation will be implied if remedy is not sought nor applied
within the period specified for it under the employment contract or
the company handbook. Where the contract or the company handbook
are silent on the period of disciplinary proceedings, a reasonable
time will be applied in determining whether or not the employer can
be said to have condoned the infraction in question.

A key principle in industrial relations law and practice is that
the disciplinary process must not run slowly and sluggishly, or be
unnecessarily prolonged; for otherwise, the employer stands the
risk of being subsequently barred from applying penalty. From this
principle, two rules are evident: firstly, the right to suspend an
employee available to an employer is not a right that is eternally
available. And secondly, where there is an infraction, an employer
who allows the disciplinary process to run very slowly and
sluggishly stands the risk of being read to have condoned the said
infraction. As a result, courts customarily frown on a prolonged
suspension, and in some cases, quash the suspension.

In one of the decided cases, the Court expressed its displeasure
over a prolonged suspension, when the employee in question had been
suspended for a period of over 18 years. The suspension was held to
be unfair and unjust and accordingly quashed. In another case, the
claimant was erroneously suspended in 2005, recalled in 2009 and
told that he will still be investigated for what he was initially
and erroneously suspended for. The Court in this case also set
aside the suspension and ordered that employee be paid all his
entitlements without any loss of benefit including arrears of his
salaries.

In yet another case, the employee sued to contend his employer’s
act of summary dismissal was irregular in the sense that the
employer after the conclusion of the investigation did not suspend,
terminate, sanction or summarily dismiss him. Rather, the employer
transferred him to a different branch as its employee to continue
on the job. The employer was held to have condoned the infractions,
which he later purported to act upon in dismissing the
employee.

The court has also held that in a case where the staff handbook
provided that ‘disciplinary proceedings for any misconduct shall be
dealt with as soon as possible’, undue delay on the part of the
employer must be read as a waiver of the right of dismissal, and
that any dismissal afterwards can only be construed as a case of
victimization.

The common principle in all these cases is that where an
aggrieved party is lax in seeking remedy (and the laxity is usually
for a period exceeding one year), condonation will be implied. This
means the aggrieved party must be decisive in considering legal
action in deserving cases. This is especially for the employer, who
is often required to apply disciplinary measures.  When the
disciplinary process is activated, it is essential to follow the
process through completely. Employers must have robust procedures
and supporting documentation in place to effectively discipline
their employees, both to ensure procedural fairness, and to protect
their position, should the employee take action against them.

In practice, the disciplinary process starts well-invitation to
the meeting is sent, the meeting is held, all the evidence and the
employee’s response is considered, the decision is made to apply
the penalty, the employee is advised that they are getting a
punishment, but then the letter never gets issued. Often these
matters are not followed up because of the difficulty of
articulating the problems, creating performance improvement plans
and setting quantifiable outcomes. Subsequently, the whole grievous
process achieved so far will be wasted.

In conclusion, it is important to note that disciplinary
procedures in the workplace will be to the benefit of both the
employer and the employee. Employers often find themselves making
costly procedural mistakes when disciplining or dismissing an
employee for misconduct. They may have a fair reason for dismissal,
for example the employee has stolen company goods, deliberately
damaged the employer’s property or breached health and safety
rules, but if the employer has not followed a fair procedure, this
can make the whole process unfair.

Having a clear, legally compliant and well-written procedure
will guide an employer through a good disciplinary procedure which
will reduce the likelihood of running into legal action and
providing the affected employee with the much needed feeling of
fairness of the process.