Most Employers are aware that when an employee is dismissed, that dismissal must be procedurally and substantively fair. Failing one or the other, a Commissioner at the CCMA or a Bargaining Council will deem the dismissal to be unfair, and an employer will find themself on the receiving end of an adverse arbitration award.
The Labour Relations Act sets out certain requirements that need to be met in terms of both the procedural and substantive elements of a fair dismissal. One of the requirements pertaining to a dismissal’s substantive fairness is that the sanction imposed needs to be appropriate.
Most Employers will implement a disciplinary code or a code of conduct in the workplace. This has the effect of establishing a certain standard of conduct required from employees within the workplace. A disciplinary code will generally set out various types of prohibited misconduct within the workplace and provide the suggested disciplinary action for infringements. (It should be kept in mind that these codes merely serve as guidelines, and each individual case should be dealt with on its merits.)
Some types of misconduct, if an employee is indeed found guilty of such, will warrant dismissal on the first offence. Examples of these types of misconduct are gross dishonesty, wilful damage to the employer’s property, and physical assault on the employer, fellow employee, client or customer, to name but a few.
Other types of misconduct, however, are not so straightforward. Employers will occasionally find themselves on the receiving end of frustrating arbitration awards where commissioners will have deemed the sanction, being dismissal, to be inappropriate.
Prime examples of these types of misconduct are insubordination, insolence, and negligence.
Generally speaking, an employer will need to adopt a progressive approach when disciplining an employee for one of the above types of misconduct. However, there are certain instances where an employer will feel that an employee’s misconduct was extremely serious in its nature and that a continued employment relationship would be impossible to sustain.
However, the problem with these dismissals is that once the dismissal has been referred to the CCMA or Bargaining Council, the respective commissioner is afforded the decision-making powers, and one of the decisions a commissioner is faced with is that of the appropriateness of the sanction imposed on the employee.
The unfortunate truth that employers are faced with is that commissioners do not always view misconduct, and the severity thereof, in the same light that an employer might.
It is often the case that an employer, during arbitration, can prove to a commissioner that an employee is indeed guilty of the charge, or charges against them, however, when considering the question of the appropriateness of the sanction, the employer fails to convince a commissioner that dismissal was the only appropriate sanction. This, in turn, leads the commissioner to believe that the dismissal was substantively unfair, resulting in an adverse arbitration award, which usually brings financial implications with it.
In short, although an employer may believe that dismissal is the only appropriate disciplinary action that will suit the misconduct committed by an employee, there is a multitude of considerations that need to be made, from the Code of Good Practice to the Disciplinary Code, to how previous employees who committed the same or similar misconduct were disciplined, to name a few, failing which, the employer may well be in for an unpleasant experience at the CCMA.
Article by: Wesley Field
Provincial Manager – Bloemfontein