SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity
This article deals with dismissals for misconduct
Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer.
The employer should formulate and publish a disciplinary code that is made available to every employee and is explained to him or her if s/he is not sufficiently literate. This code should list offences and appropriate measures that may be taken by the employer in the event of breach.
A disciplinary code should be progressive in nature and not punitive, meaning that measures for less serious transgressions should aim at correcting the behaviour of the employee and not to punish.
Such measures could include informal counselling, verbal warnings, written warnings, final written warnings and accumulative final written warnings for “serial” offenders.
Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188, which provides:
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.
(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.
When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.