One of the most, if not the most, common reasons for CEO representing our members at the CCMA is for cases of dismissal by virtue of misconduct committed by the employee. It seems then only fitting that for the month of November a short series of articles will briefly canvass what constitutes a dismissal for misconduct, the legal prescripts that govern such dismissals and also a specific emphasis on dismissals for particular misconduct which seems to transpire most commonly of all. Furthermore, we will also explore the most common challenges faced by employers when trying to prove that a dismissal for misconduct was fair. In this introductory article, an overview will be given as to the general guiding principles surrounding a dismissal for misconduct and what burden or onus the employer has to discharge of when successfully defending a claim of dismissal for misconduct.


What is misconduct you may ask? In layman’s terms, it would most commonly be described as the breaking of a rule of some kind, behaviour which is not akin to the standard of a particular place. For the most part, this is correct, and just like in the normal sense, when it comes to labour relations, misconduct can be described as the breaking of a rule or standard in the workplace.


When an employer contemplates dismissing an employee for misconduct, the employer must have sight and always bear in mind the Code of Good Practice on Dismissals when trying to determine the appropriate sanction or manner in which to chastise the employee.


The Code of Good Practice prescribes that in order for a dismissal for misconduct to be deemed fair there are two prerequisites that need to be adhered to, each with various sub-facets to which an employer must comply, these two prerequisites are, substantive fairness and procedural fairness.


These two facets are not unique only to dismissals for misconduct, however, for the purposes of misconduct, this series of articles will place special emphasis on the substantive part of the dismissal process, the nuances and intricacies that come with it whilst maintaining a keen eye on what the Code of Good Practice says pertaining to the substantive element of a dismissal for misconduct.


If one then turns their attention to the substantive element of a dismissal based on misconduct, the first port of call would be the Code of Good Practice for Dismissals. A verbatim reading of the code provides us with the following:


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 with an appropriate sanction for the contravention of the rule or standard.


The above guidelines are oft-quoted by CCMA Commissioners in their respective arbitration awards, this is a clear indication of their importance and relevance when a Commissioner is determining whether a dismissal for misconduct is fair or not. It often so happens that one of the above guidelines are not adhered to or, what seems to be most common, is employees allege they had no knowledge of the rule. These small, sometimes seemingly insignificant factors can sometimes have a drastic impact on the outcome of a case and can lead to adverse arbitration awards being made against employers.


Even if an employer has a simple reading of the CCMA’s guidelines on dismissals, it will become apparent that the CCMA adopts a view whereby if a certain employee has been found to have committed certain misconduct, and before a dismissal takes place, the possibility of a sanction short of dismissal should be explored. Furthermore, the CCMA and the guidelines for dismissals based on misconduct as contained in the code, provide that when progressive is an alternative to dismissal, an employer should first explore these avenues before merely dismissing an employee.


It is with this in mind that we urge all employers to keep a close eye on the code as well as their own unique disciplinary codes in the workplace before charging or dismissing an employee for misconduct. In the next few articles for this theme month, we will explore specific types of misconduct which seem to be most prevalent amongst employers and our members. This will enable employers to have the requisite knowledge, backed up by case law and statute, at their disposal when determining whether to dismiss an employee for misconduct or not.


Article by: Daniel van der Merwe

Provincial Manager – Port Elizabeth