Dismissal as Appropriate Sanction South African labour law

1 dismissal appropriate sanction

1.1 gravity of misconduct
1.2 circumstances of infringement
1.3 nature of employee’s job
1.4 employee’s circumstances
1.5 other employees dismissed same offence

dismissal appropriate sanction

whether or not dismissal appropriate sanction factual question. item 3(5)-(6) of code lists factors taken consideration. employer should consider, in addition gravity of misconduct, such factors employee’s circumstances (including length of service, previous disciplinary record , personal circumstances), nature of job , circumstances of infringement itself. employer should apply penalty of dismissal consistently way in has been applied same , other employees in past, , consistently between 2 or more employees participate in misconduct under consideration. these factors must considered , weighed decide whether dismissal justified or whether less severe sanction more appropriate.

it has been submitted that, if commissioner not consider dismissal appropriate sanction after considering these factors, penalty of dismissal stand if commissioner or judge satisfied reasonable employer have decided dismiss under circumstances.

in case of sidumo , v rustenburg platinum mines ltd , others [2007] 12 bllr 1097 (cc), however, security guard @ mine not abiding search procedures obliged employ workers @ mine. there video footage available proof not adequately searching workers. security guard dismissed on suspicion fraternising workers in order steal mines. ccma having held sanction harsh, case appealed labour court , labour appeal court. when case reached sca, court held employers have discretion dismiss. if employer acts reasonably, decision must upheld.

on appeal constitutional court, held commissioner hears appeal must decide afresh if decision fair or unfair; therefore, not appropriate reasonable employer. sca approach, therefore, found wrong. test reasonable commissioner have done in circumstances. court, then, not bound choice made reasonable employer. reasonable employer test no longer used.

gravity of misconduct

the more serious misconduct, greater likelihood dismissal appropriate penalty. seriousness of misconduct depends on number of considerations:

the nature of offence;
the circumstances surrounding commission of offence;
the nature of work performed employee;
the nature , size of employer’s workforce;
the position employer occupies in marketplace , profile in market;
the nature of work , services rendered employee;
the relationship between employee , victim; and
the effect of misconduct on workforce whole.

circumstances of infringement

a serious offence not automatically warrant employee’s dismissal. not knee-jerk response serious offences. there may circumstances have tempering effect, not on seriousness of offence such, on severity of penalty: example,

in case of theft, if object has been stolen of such trifling value dismissal may harsh penalty;
in case of assault, if employee provoked or acted in self-defense; and,
in case of refusing obey superior’s orders, if instructions unreasonable or illegal.

the nature of employee’s job

in case of brewery, employer justified in taking strict disciplinary approach regarding intoxication , use of alcohol during working hours. less strict approach intoxication may expected employer employees not deal directly public or not work dangerous machinery. this, however, not mean such employer may never dismiss employees intoxication; means greater measure of progressive discipline expected such employer.

employee’s circumstances

these include employee’s length of service, status within undertaking, previous disciplinary record , personal circumstances.

years of service count in employees favor. must noted, however, employer puts great deal of trust in employee long service; therefore, count against employee if breaches trust after many years of service.

the employer expect higher degree of responsible behavior supervisor or manager ordinary worker.

if there previous warning on employee’s personnel file, stating dismissed if same offence committed in future, dismissal may fair if occurs. warning not remain valid indefinitely. employer , trade union may agree on period warning remain valid, or employer’s code may stipulate this. in absence of such agreement or stipulation, default position warning remains valid 6 months, unless infraction particularly serious, in case may remain valid duration of employee’s service.

other personal circumstances may important include employee’s age, marital status , number of dependents.

other employees dismissed same offence

the employer must, far possible, treat employees same if have breached same rule or rules similar: there must consistency when meting out discipline.