Discipline and Dismissal

Ivan Israelstam: Labour Law Management Consulting

 

Even when an employer finds an employee guilty of a serious offence this does not automatically entitle the employer to fire the employee.

There are numerous possible remedies for misconduct, which could include:

  • Dismissal - the most severe corrective action.

  • Demotion - provided that the employee is given the choice of dismissal or demotion.

  • Suspension without pay - provided that the employee is first given the choice of dismissal or suspension.

  • A warning or final warning - which must be very carefully worded.

  • Training - where lack of skills or relevant knowledge is the cause of the problem, some sort of training to rectify the problem may be advised.

  • Treatment - for example where addiction to substances or alcoholism is an important factor contributing to the misconduct.

 

Before deciding on the penalty or corrective action, the employer should consult the disciplinary code and consider, amongst other factors:

  • The nature and seriousness of the misconduct.

  • Aggravating circumstances.

  • The employee's personal circumstances.

  • The employee's length of service at the organisation.

  • The employee's disciplinary record.

  • Extenuating circumstances.

 

Extenuating circumstances are those related to the case itself that might render the misconduct less serious. For example, where an employee refuses to obey an instruction from a manger due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction.

This is because, while the employee disobeyed the instruction, he or she did not do so out of defiance to the manager, but rather out of ignorance. Where such circumstances exist it would be folly for employers to ignore them. This is because CCMA and bargaining-council arbitrators expect the level of discipline meted out to be in line with the circumstances of the case.

Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case. For example, in the case of NUM obo Khanye v South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission, without an appropriate driver's licence and for damaging the vehicle in an accident.

The CCMA arbitrator decided that:

  • The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a proper driver's license and that failure to comply with this rule would result in serious disciplinary measures.

  • The employee had in this case, however, used the vehicle due to an emergency at the workplace.

  • This was an extenuating circumstance.

  • The dismissal was therefore too harsh.

  • The employee was to be reinstated.

 

In the case of of NUMSA obo Madobeng v Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee's colleague had accused her of treating the company's change room as a bedroom and of sleeping with her grandfather. A scuffle ensued and the employee was brought to a disciplinary hearing.

The arbitrator at the Metal and Engineering Industry Bargaining Council found that:

  • The employee's conduct did not amount to an assault as the physical contact made during the scuffle was very slight.

  • The employer had not disputed the fact that the employee had been provoked by the insult from her colleague.

  • The employee had been provoked by her colleague's insult but the presiding officer of the disciplinary hearing failed to take this into account.

  • The arbitrator ruled that the employee was to be reinstated with full back pay.

 

Where employers are unsure as to whether extenuating circumstances exist they should obtain expert labour law advice before acting against the employee.

  • Ivan Israelstam is chief executive of Labour Law Management Consulting.

  • He can be contacted on 082-852-2973 or send an e-mail to

  • Our appreciation to Ivan and The Star newspaper for permission to publish this article

Case Law Summaries and Articles

 

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Escape route: “Resignation with immediate effect”

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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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