Discipline and Dismissal


It is not always easy for the Chairperson of a disciplinary hearing to conclude that dismissal may be an appropriate sanction in an act of misconduct. 
Indeed, it is not a quick decision, and is not a decision to be taken lightly. In Komane v Fedsure Life, it was noted that "fair" is defined in the Concise Oxford Dictionaryas "just, unbiased, equitable."

It was noted further that a reason which is "capricious, fanciful, spiteful, or arbitrary could never amount to a "fair" reason." In his deliberations, the Chairperson must consider that the decision must ensure that both parties or treated fairly - in other words, the decision must ensure that it is fair to both the complainant and the respondent. One question that the Chairperson should ask himself is " was the act of misconduct sufficiently grave as to justify the permanent termination of the relationship ?" (NUM & others v Free State Consolidated Mines (Operations) Ltd.)

In Jefferies v President Steyn Mine , the industrial Court held that "several principles and factors are taken into account when the sufficiency of the reason for dismissal in a case of misconduct  is considered, and this would include common law principles such as the nature of the misconduct, the possible prejudice to the employer, the employee's state of mind, the employer's disciplinary code, the consistency of the employer's actions, prior warnings received by the employee, and the fact that the employee knew he could be dismissed for his misconduct.
 

The circumstances of the employer also play an important role.

For example a certain instance of misconduct that may, under normal circumstances, not be regarded as sufficiently serious to justify dismissal, but may be rendered sufficiently serious in view of the employer's own particular circumstances."

It is also important that the Chairperson take note of the vital element of consistency. Where similar acts of misconduct had been committed by different employees at different times, it is essential that those employees are all measured by the same standard, and where similar circumstances apply, a similar sanction would be justified.

At the same time, the Chairperson must pay attention to the circumstances of the employee, his personal and previous disciplinary records, and must pay attention to the "merits" or seriousness of the misconduct and the circumstances under which it was committed.

 

One test that is applied is the question or whether dismissal is an appropriate sanction for an act of serious misconduct in cases where the continuation of the employment relationship has been rendered intolerable. For example, an act of misconduct involving theft would require the Chairperson to consider this question.

The nature of the employer's business and the nature of the employee's work would be taken into account - for example, in a jewellery store, and act of theft committed by a salesperson would, in all probability, render the employment relationship intolerable. However, in an office environment, the theft of a few tea bags or a litre of milk by the lady who is employed to make the tea, would not necessarily render the employment relationship intolerable.


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Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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