Discipline and Dismissal

 

Much has been written on this subject, which still seems to contain grey areas or misunderstood conceptions in the minds of employers. Double jeopardy or double punishment applies in instances where a particular sanction has been enforced, and then subsequently
a further or harsher sanction is enforced for that same act of misconduct. 


For example, the finding of the chairperson of a disciplinary hearing may be that the respondent is to be sanctioned with a final written warning, and then the employer dismisses for that same incident.  In Hospersa obo Lokoeng / Provincial Dept thinkof Health Limpopo, the applicant was dismissed for being absent without leave. He had previously been given a number of warnings for poor timekeeping.  The applicant stated that his dismissal was unfair because he had already been punished for the offense in question.

 

The applicant acknowledged that he had been absent without leave in the period mentioned, and he further acknowledged that he was aware of the company rule in this regard.  The question to be decided was whether the respondent had punished the applicant twice for the same offense. There was no evidence led to show that there was any incidents of absence apart from those for which the employee had been issued warnings. 


The applicant was dismissed through the disciplinary hearing, after having been found guilty of unauthorised absence from work. On various occasions of absence, the applicant had been counselled and had been given warnings, up to and including a final written warning, for all the different incidents of absenteeism without authority.  He had previously received sanctions of unpaid leave against him, until the incident where he incurred a final written warning.

 

No formal proceedings had been followed previously, and all the warnings issued and sanctions issued in the past were given solely at management's discretion without any formal hearings.  After having been given a final written warning, he was then afterwards officially charged and notified of a disciplinary hearing, where he was found guilty (a second time of all the previous offences) and was dismissed.


The applicant acknowledged that he had been charged, found guilty and dismissed for absenteeism on the same dates that he already been given the previous warnings on - including the incident on which he had received a final written warning.  The applicant acknowledged that on the first incidents, he was given counselling, he had then received two further written warnings for two different incidents of unauthorised absenteeism, and he had then been given a final written warning for a further incident of a.w.o.l, and a second final written warning for a further incident of a.w.o.l.

 

The respondent then held a final and formal disciplinary hearing, on which all these previous issues were addressed, and the applicant was dismissed for these previous issues which had already been heard and sanctions applied. At the arbitration, the applicant's representative stated that the dismissal was unfair, in that the respondent had charged the applicant a second time for the various incidents. Alleging (quite correctly) also that the onus was on the respondent to prove that the dismissal was fair, and secondly that the respondent had failed to prove that the dismissal was fair, the applicant was simply not going to lead any evidence against the respondent because the respondent had failed to discharge his onus regarding the burden of proof.

 

Quite obviously, the employee cannot be dismissed for previous incidents of misconduct on which he has already been subjected to a disciplinary hearing and a fair sanction has been applied. In this particular case the respondent was awarded reinstatement, payment of back-pay of all salary and benefits that he had forfeited from the date of dismissal, and the award was to be implemented within 30 days of the date of the award. 


For further information, contact

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”.

Read More >>>

 

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.

Read More >>>

 

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.

Read More >>>

 

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.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Employment Equity Committee Training

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

Compensation for Occupational Injuries and Diseases Course

12 September 2019

Southern Sun: Maharani Towers: Durban

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

AARTO and the Impact on Your Business

03 October 2019

Emperors Palace Convention Centre

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

21 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

22 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play