Contravention of rule by employee South African labour law

1 contravention of rule employee

1.1 did rule exist?
1.2 there contravention of rule?
1.3 validity , reasonableness of rule
1.4 employee’s knowledge of rule
1.5 consistent application of rule

contravention of rule employee

there 2 issues considered under heading. in first instance, must determined whether or not rule existed; in second, if rule existed, must determined whether or not employee contravened it.

did rule exist?

the formulation of disciplinary rules responsibility of employer. important source of these rules written disciplinary code or rules of conduct. if such written code or set of rules exists, must examined determine whether rule employee accused of having contravened contained in code. if disciplinary code not contain rule under consideration, may important indicator such rule not exist in particular workplace.

if particular rule employee accused of having contravened not included in written code, not mean employee’s dismissal unfair.

the particular rule may contained in

the employee’s written contract of employment;
a policy or personnel manual; or
notices placed on notice boards in workplace

legislation such occupational health , safety act may regulate conduct of employees. sections 14 , 15 impose number of duties on employees, such as

the duty take reasonable care health , safety of , of other persons may affected acts , omissions;
the duty carry out lawful order , obey health , safety rules , procedures laid down employer;
the duty report unsafe or unhealthy situation exists; and
the duty report have been involved in incident may affect health or has caused injury them.

another important source rules common law, includes, example, duty act in faith.

item 7(a) of code provides 1 may consider whether employee contravened rule regulating conduct in, or of relevance workplace. provision broad enough entitle employer proceed against employee has contravened rule after working hours, or outside premises of employer. circumstances possible limited, however, situations misconduct in way affects or otherwise relevant employer’s business.

was there contravention of rule?

once has been established rule exists, next issue addressed whether or not employee has contravened it. issue must determined on facts. if, example, employee charged unauthorised possession of company property, must proven in circumstances.

section 192(2) of lra states employer must prove dismissal fair; therefore employer must prove employee has contravened rule. neither lra nor code stipulates standard employer must prove employee’s contravention of rule, submitted employer must prove contravention on balance of probabilities.

the lra , code not stipulate on facts employer may rely prove contravention. industrial court has given conflicting opinions on whether employer restricted relying on facts available @ time of enquiry, or whether may rely on facts came light after dismissal. submitted commission conciliation, mediation , arbitration adopt second approach.

validity , reasonableness of rule

once clear rule existed , employee contravened it, attention must focused on rule itself. first aspect must determined whether rule valid or reasonable. factual question. rule valid or reasonable if lawful , can justified reference needs , circumstances of business. factors may determine whether or not rule justified include following:

the nature of employer’s business (for example, brewery prohibiting use of alcohol employers); and
the circumstances in business operates (for example, type of work employee does).

an important indicator of validity or reasonableness of rule inclusion in disciplinary code contained in collective agreement between employer , trade union. unlike rule employer unilaterally enforces, rule product of collective bargaining.

the reasonableness of rule may affected employer’s preparedness in past enforce it. if has not been enforced in past, may indication employer not regard rule reasonable. employer’s failure enforce rule not make rule permanently invalid, however. may regain validity if employer , unequivocally informs employees rule enforced in future.

the fundamental issue employer cannot act against employee if latter unaware employer regards breach of rule serious.

employee’s knowledge of rule

the employee must have known, or reasonably expected have been aware, of rule. rationale employee should penalised actions or omissions employee knew (at time) unacceptable. implied employee must have known transgression of rule may lead dismissal.

knowledge of rule may achieved through

its inclusion in written disciplinary code;
meetings workers;
written briefs;
notices on notice boars; or
induction programs new employees.

certain forms of misconduct may known in workplace notification unnecessary. case theft assault, intimidation, insolence , insubordination.

consistent application of rule

an employer must, far possible, treat employees in same way if have committed same or similar offences. employer must consistent, in other words, in meting out discipline.

two types of inconsistency may distinguished:

historical inconsistency, employer has in past not proceeded against employee contravening rule; and
contemporaneous inconsistency, employees breach same rule contemporaneously, or @ same time, not disciplined, or not in same way, or same extent.

inconsistency not unfair. employer can justify inconsistency through factors such employees’ different circumstances: length of service, example, or disciplinary records , personal circumstances.

in sa commercial catering & allied workers union v bonus building, court held that, if distinction drawn between different employees, distinction must motivated; otherwise give rise perception of bias.

the court in city of cape town v mashitho & others found that, if employer intends discipline employees misconduct has not disciplined them in past, proper course make known such discipline effected , reasons change.