Discipline and Dismissal

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The chairperson of a disciplinary hearing is often faced with the dilemma of deciding whether or not a dismissal would be appropriate on a first offense in a serious act of misconduct. Often, the employer's disciplinary code stipulates that on a first offense for a particular misconduct, a written warning is to be issued, then on a second offense a final written warning, and on a third offense – dismissal.


The Chairperson, after hearing all the evidence and considering the circumstances, feels that the matter is serious enough to warrant a dismissal, even though it is a first offense, and despite the fact that the employer's code provides otherwise. In NUMSA ob Davids / Bosal Africa (Pty) Ltd [1999] 11 BALR 1327 (IMSSA), a crane driver had been dismissed for reporting for work with 0,15 per cent on call in his bloodstream, and he operated a crane for about three hours before his condition was detected by the employer.

 

The union disputed the fairness of the dismissal, maintaining that the level of blood alcohol had not prevented the employee from discharging his duties. The response from the employer was that the dismissal was appropriate, because any error by the crane driver could result in the death or injury to employees or serious damage to the employer's property.


The Commissioner stated that before the chairperson of a disciplinary hearing decides on the sanction for an infringement or act of misconduct, he is required to consider the personal circumstances of the employee, and the interests of the employer - among other things such as the employees service record and disciplinary record.


It was observed that given the grievant's condition at the time, " it was a miracle that he had not cause a serious accident." It is accepted that discipline must be applied progressively - discipline is not intended to be a method of simply terminating an employment relationship for any offense. Progressive discipline is the idea of disciplinary measures.

 

However it is also recognised that in certain circumstances, the act of misconduct may be so serious that a dismissal is warranted even on a first offense. A decision must be made whether the sanction decided upon is in the fair interests of both employer and employee - the old question of whether or not the continuance of the employment relationship has been rendered intolerable, or whether the element of trust - the very basis of any employment relationship - has been broken.


Working under the influence of alcohol is an extremely serious offense, and especially where the work is of a dangerous nature, as in the case mentioned above. The question arises - what could the potential damage have been, or the potential loss of life have been, if this employees condition had not been discovered?

 
There does not have to be actual loss or damage - a potential loss or damage is sufficient to point to the seriousness of the offense. In this case the company had a rule prohibiting its employees from working while under the influence of alcohol. The Arbitrator observed that in a case of such as this, there is no dishonesty such as theft or fraud - and thus it can be a difficult task to decide on the appropriate penalty.


In addition, in this case the applicant had 19 years service with the company, and no record of previous disciplinary offences, and had always been a reliable worker. In addition, the union contended that his condition on the day in question did not prevent him from discharging his duties. Therefore, we are faced with a case where an employee literally has " a clean record."


The Arbitrator ruled that such a decision entails evaluating the circumstances in which the offense was committed, its nature and the degree of gravity, the personal circumstances of the employee, the interests of the employer and the interests of a the employees, and the employees service record and previous disciplinary record.


An arbitrator is required to ensure that the employer has properly evaluated those considerations and has reached a fair decision after having done so. It was ruled further that "the employer discharges the onus of proving that the dismissal was fair if the arbitrator is satisfied that the employer took relevant considerations into account, and that the employer's explanation for deciding on dismissal, rather than on some lesser penalty, is sound. Under the circumstances. It was ruled that this dismissal was accordingly a fair sanction in the circumstances.


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