Discipline and dismissal for misconduct South African labour law

1 discipline , dismissal misconduct

1.1 origin of employer’s right discipline
1.2 discipline , common law
1.3 code , employer’s right discipline
1.4 form , content of disciplinary codes of conduct

1.4.1 form
1.4.2 content


1.5 corrective or progressive discipline
1.6 substantive fairness of dismissal misconduct
1.7 contravention of rule employee

1.7.1 did rule exist?
1.7.2 there contravention of rule?
1.7.3 validity , reasonableness of rule
1.7.4 employee’s knowledge of rule
1.7.5 consistent application of rule


1.8 dismissal appropriate sanction

1.8.1 gravity of misconduct
1.8.2 circumstances of infringement
1.8.3 nature of employee’s job
1.8.4 employee’s circumstances
1.8.5 other employees dismissed same offence


1.9 procedural fairness of dismissal misconduct

1.9.1 elements of procedural fairness

1.9.1.1 investigation
1.9.1.2 notice of charge , investigation
1.9.1.3 reasonable time prepare response
1.9.1.4 employee entitled state case in response
1.9.1.5 employee entitled assistance
1.9.1.6 decision
1.9.1.7 communicating decision
1.9.1.8 employee informed of reason dismissal
1.9.1.9 appeal
1.9.1.10 dispensing pre-dismissal procedures

discipline , dismissal misconduct

dismissal severe penalty employer may impose against employee guilty of misconduct. in determining whether or not dismissal appropriate in circumstances of case, employer may have weigh number of factors come decision.

origin of employer’s right discipline

generally, employer has right maintain , enforce discipline in workplace. right has origin in common law implied term in contract of employment. inextricably linked employee’s duty obey lawful , reasonable instructions, , linked employer’s right give instructions. today employer’s right discipline regulated degree lra , code of practice: dismissal, annexed lra schedule 8 (the code).

discipline , common law

under common law, employer may summarily dismiss employee if latter’s misconduct serious, or dismiss employee merely giving required notice. occasionally, employer may prefer impose less severe penalty, employer’s action in imposing penalty may not amount breach of contract. suspension without pay or demotion, or ordering forfeiture of agreed bonus or part of wages, constitute breach of contract. employer may, however, suspend employee on full pay , give warnings.

the effectiveness of these penalties questionable. suspension on full pay, example, found have little deterrent effect. in practice, employer’s superior bargaining power, , right dismiss merely giving notice, meant employer convince employee agree penalty otherwise have amounted breach of contract.

the code , employer’s right discipline

the code of practice recognizes employer’s common-law right discipline employees requiring, in item 3(1), employers should adopt disciplinary rules establish standard of conduct required of employees.

if agreed disciplinary code exists in workplace, item 1(2) of code stipulates disciplinary action against employees must comply disciplinary code , procedure.

if, however, disciplinary code unilaterally introduced employer, or if no such code exists, regard must had code’s provisions. employer’s own code must measured against provisions of code; in absence of employer code, code constitute minimum guidelines discipline.

form , content of disciplinary codes of conduct
form

the code accepts form of employer’s disciplinary rules vary according size , nature of business, these rules must clear , made available employees there certainty employer expects them , sort of behavior not tolerated.

a disciplinary code may take form of collective agreement between employer , trade union or unions; may policy unilaterally imposed employer; or may incorporated terms , conditions of employment.

very recognition agreement, in terms of employer recognizes 1 or more trade unions collective bargaining agent of category of employees, include, annexure, agreed disciplinary code , procedure. in way, disciplinary code , procedure obtains status of collective agreement.

content

the code accepts content of disciplinary code vary according size , nature of employer’s business. rules of conduct may established , known unnecessary employer communicate them employees. employee breaches such rule cannot argue rule not appear in written disciplinary code. rule established need not communicated if employees know particular act or omission not tolerated if employer has in past disciplined employees committed particular act or omission.

rules may considered established virtue of common-law contract principles, breach of duty act in faith. examples of acts , omissions held constitute such breach include

theft;
assaulting employer, superior or co-employees;
insubordination;
failure obey reasonable , lawful order;
drunkenness, if affects employee’s work or persistent or results in prejudice;
absence without leave or repeated absence;
misappropriation of company property;
timekeeping or clock-card offences; and
unfair competition employer.

employer disciplinary codes contain disciplinary sanctions each type of disciplinary infraction , procedure followed.

in cases, industrial court has drawn distinction between theft , petty pilfering, , has required that, justify dismissal, offence @ issue should disclose thieving propensity on part of employee. in anglo american farms boschendal restaurant v komjwayo, however, distinction rejected. court held true test whether or not employee’s action had effect of rendering relationship of employer , employee intolerable. although has been more lenient in cases, ccma has followed strict approach in cases of theft , other forms of dishonesty.

due south africa’s apartheid past, racist abuse viewed in particularly serious light. in lebowa platinum mines v hill, employee dismissed calling employee bobbejaan (baboon). court held dismissal justified because court found term had racist connotation.

corrective or progressive discipline

in terms of common law, employer may either condone misconduct or elect act against employee. if misconduct of sufficiently serious nature, employer may decide cancel contract of employment , dismiss employee.

dismissal 1 of number of penalties employer may impose against guilty employee. examples of other penalties are

suspension without pay;
verbal , written warnings;
demotion; and
transfer.

the code emphasizes concept of corrective or progressive discipline. item 3(2) requires employer try correct employees’ behavior through system of graduated disciplinary measures such counselling , warnings. formal disciplinary procedures not have invoked every time rule broken. informal advice , correction best way deal minor violations of work discipline.

warnings may graded according degrees of severity, verbal warning first offence, first written warning, final written warning or suspension without pay or demotion, , dismissal, reserved repeated offences or serious misconduct. item 3(4) gives list of examples of serious misconduct may result in disciplinary enquiry , possible dismissal first occurrence. list includes

gross dishonesty;
wilful damage company property;
wilful endangering of safety of others;
physical assault on employer, fellow employee, client or customer; and
gross insubordination.

substantive fairness of dismissal misconduct

as stated before, section 188(1) of lra requires that, if misconduct reason dismissal, must fair reason. item 7 of code provides guidelines when misconduct constitute fair reason dismissal. following must considered:

whether or not employee contravened rule or standard regulating conduct in, or of relevance to, work-place; and,
if rule or standard contravened, whether or not

the rule valid or reasonable rule or standard;
the employee aware, or reasonably expected have been aware, of rule or standard;
the rule or standard has been consistently applied employer; and
dismissal appropriate sanction contravention of rule or standard.

the guidelines in item 7 substantively fair dismissal not hard , fast rules. employer’s non-compliance particular guideline not make dismissal unfair. question of whether or not non-compliance particular guideline permissible depends on circumstances.

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.

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.

procedural fairness of dismissal misconduct

section 188(1)(b) of lra requires dismissal misconduct must effected in accordance fair procedure, entails fair disciplinary enquiry. lra not regulate fair disciplinary enquiry. employer’s disciplinary code , procedure prescribes procedure followed , manner in hearing should conducted. code provides number of guidelines fair enquiry in item 4: not substitute disciplinary procedure merely template fairness of dismissal must judged.

normally, employer should conduct investigation determine whether there grounds dismissal. not need formal enquiry. employer should notify employee of allegations, using form , language employee can reasonably understand. employee should allowed opportunity state case in response allegations. employee should entitled reasonable amount of time prepare response, , assistance of trade union representative or fellow employee. after enquiry, employer should communicate decision taken, , preferably furnish employee written notification of decision.

discipline against trade union representative, or against employee office-bearer or official of trade union, should not instituted without first informing , consulting trade union. if employee dismissed, employee should given reason dismissal , reminded of rights refer matter council jurisdiction or commission, or dispute resolution procedures established in terms of collective agreement.

in exceptional circumstances, if employer cannot reasonably expected comply these guidelines, employer may dispense pre-dismissal procedures.

elements of procedural fairness
investigation

the purpose of investigation determine whether or not there grounds dismissal. investigation need not formal enquiry.

notice of charge , investigation

the employer must notify employee of allegations against him. employer must use form , language employee can reasonably understand. charge in writing , in language commonly used in workplace. notice of charge , of disciplinary enquiry given simultaneously , in same document

reasonable time prepare response

the question of reasonable time factual one. nature , complexity of charges relevant in ascertaining whether employee has had sufficient time. whether employee had assistance in preparing response relevant.

employee entitled state case in response

this core of procedural fairness in context of dismissal misconduct. employee may dispute facts on charges based, or may plead guilty charges argue dismissal not appropriate sanction.

employee entitled assistance

the employee entitled assistance of trade union representative or fellow employee during enquiry. trade union representative defined in section 213 of lra member of trade union elected represent employees in workplace (commonly called shop steward). fellow employee includes colleague, supervisor or director of company employee working, provided director employee.

the purpose of assistance is

to assist presentation of response charge; and
to ensure procedure followed during enquiry fair.

item 4(1) not provide assistance legal practitioner, such advocate or attorney, disciplinary codes provide legal representation under circumstances.

decision

the decision whether or not employee guilty of alleged misconduct, , sanction, responsibility of chairperson of disciplinary enquiry. disciplinary codes, however, provide chairperson may may recommendation senior management. latter must take final decision, differ chairperson’s recommendation.

an important question arises: can senior management overturn decision of chairperson or order second enquiry whether or not latter empowered code not merely make recommendation decide issue?

the court has indicated possible, subject limitations, , whether or not second disciplinary enquiry may opened depends on whether or not fair in circumstances.

the court has stipulated 2 cautionary remarks:

the important yardstick of fairness.

communicating decision

item 4(1) of code requires employer communicate decision taken, preferably in writing. both verdict , penalty must communicated.

employee informed of reason dismissal

item 4(3) of code requires that, if penalty dismissal, employee must given reason it, , must reminded of rights refer matter bargaining council jurisdiction, or ccma or dispute resolution procedure established in terms of collective agreement.

appeal

item 4 of code not make provision appeal higher level of management against outcome of disciplinary enquiry. if employee dissatisfied, must implement dispute-settling procedures provided lra. if, however, disciplinary code in workplace makes provision such appeal, employee entitled appeal in accordance code.

traditionally appeal entails re-hearing of entire matter, including evidence presented, , fresh consideration of appropriate sanction.

dispensing pre-dismissal procedures

item 4(4) stipulates employer may dispense disciplinary enquiry in exceptional circumstances if employer cannot reasonably expected comply requirement. 2 broad categories of exceptional circumstances are

waiver of right may assumed if

the employee’s conduct of such nature employer cannot expected hold enquiry;
the employee refuses attend enquiry; or
the employee fails attend enquiry because of decision on employee’s part not attend. non-attendance due illness not constitute waiver of right.