Labour Relations Act, 1995 (Act No. 66 of 1995)Commission for Conciliation, Mediation and ArbitrationGuidelines on Misconduct ArbitrationE: How to Approach Substantive FairnessGuidelines in cases of dismissal for misconduct: Item 7 of the Code |
| (77) | Any person who is determining whether a dismissal for misconduct is unfair should consider— |
| (77.1) | whether or not the employee contravened a rule or standard regulating conduct in, or relevant to, the workplace24 |
| (77.2) | if a rule or standard was contravened, whether or not— |
| (77.2.1) | the rule was a valid or reasonable rule or standard |
| (77.2.2) | the employee was aware, or could reasonably be aware of the rule or standard; |
| (77.2.3) | the rule or standard has been consistently applied by the employer; and |
| (77.2.4) | dismissal was an appropriate sanction for the contravention of the rule or standard.25 |
| (78) | The guidelines in item 7 of the Code can be broken down into the following factual enquiries that are normally associated with determining the substantive fairness of a dismissal. |
Is there a rule?
| (79) | The existence of the rule is the first and normally the easiest of the factual enquiries into substantive fairness. |
| (80) | A rule or standard contained in a disciplinary code, collective agreement, contract or policy is normally sufficient proof of its existence. If the employer has no disciplinary code, the existence of the rule may be proved by testimony or inferred from the contract of employment, legislation or practice in the sector or establishment. The arbitrator may accept as a rule any basic rule of conduct applicable in all workplaces and any special rules that may flow from the sector or the nature of the employer's operations. Many of the universal rules flow from the duties inherent in every contract of employment such as the duties relating to performance (for example the duties to work, to keep time, to comply with lawful and reasonable instructions) or relating to good order (for example the duties to cooperate or respect co-employees, not to assault or harass co-employees) or relating to trust (for example the duties not to engage in dishonest conduct or to undermine the employer's business or reputation). |
| (81) | Some rules arise from the duties imposed by legislation such as the Occupational Health and Safety Act 85 of 1993. Special rules flow from the nature of the sector or workplace. For example, there may be stricter standards of compliance in workplaces with a high risk to safety or security. |
| (82) | An arbitrator may rely on a rule or standard not contained in a disciplinary code, if the code does not specifically exclude it as a ground for discipline, where— |
| (82.1) | the employer proves, or the employee concedes, that the employee knew, or ought reasonably to have known, that the rule or standard was applicable; or |
| (82.2) | the arbitrator is able to draw an inference from the code, the contract of employment, legislation or practice in the sector or establishment workplace that the rule or standard was applicable. |
| (83) | If there is a dispute over the existence of the rule, the arbitrator may decide the dispute by taking judicial notice of the rule or decide it on the evidence. That evidence must be summarised and analysed and decided on credibility or the balance of probabilities. |
Was the employee aware of the rule?
| (84) | The determination of this factual issue is often not disputed because the rule or standard is frequently contained in the employer's disciplinary code. |
| (85) | If the employee disputes knowledge of the rule or standard, it will be necessary for the employer to demonstrate that the employer made the code 'available to employees in a manner that is easily understood' - see item 3(1) of the Code of Good Practice: Dismissal. |
| (86) | If there is no code, the factual issue can be more complicated. Unless there is evidence concerning past practice of which the employee was aware, the proper approach to this question is whether the employee could reasonably be expected to have known of the rule or standard. This is a question that can be based on evidence or on the arbitrator's expertise. So, for example, in respect of the basic rules found in all workplaces, the employee is reasonably expected to be aware of them. 'Some rules or standards may be so well established and known that it is not necessary to communicate them' - item 3(1) of the Code of Good Practice: Dismissal (Schedule 8 to the LRA). |
Did the employee contravene the rule?
| (87) | This is a purely factual question. Unless the employee concedes contravening the rule, evidence must be led from both points of view. That evidence must be carefully summarised, analysed and determined on credibility or on the balance of probabilities. |
| (88) | There may be more than one factual question and each needs to be treated separately with the different versions summarised, analysed and decided. So for example, a contravention of the rule that an employee is required to carry out the lawful and reasonable instructions of the employer may require a factual enquiry into whether the instruction was given, whether the employee understood the instruction, and whether the employee disobeyed the instruction. The fact that the employee has a justification in the particular circumstances for contravening a rule (or any instruction given in terms of the rule) is a fact that may be relevant either to the question whether the rule, properly interpreted, was contravened, or to the question whether the rule is valid and reasonable, or to the question whether dismissal was an appropriate sanction for contravention of the rule - steps in the analysis referred to in the following sections. |
Is the rule or standard a valid or reasonable rule or standard?
| (89) | It is the employer's responsibility to determine the rules and standards in the workplace.26 It is not the arbitrator's role to second-guess those rules.27 This does not constitute deference to the employer but compliance with the Code.28 The arbitrator's role is to determine the validity and reasonableness of the rule as part of the general enquiry into the fairness of the dismissal. |
Validity.
| (90) | The arbitrator must consider the rule or standard and determine whether it is lawful or contrary to public policy. For example, an instruction to perform work in contravention of a safety standard is not a lawful instruction. An instruction to perform work that falls outside the scope of duties that the employee may reasonably be expected to perform is not a lawful instruction. An instruction to seduce clients or not to give evidence against one's employer is contrary to public policy. |
Reasonableness.
| (91) | The Code of Good Practice: Dismissal requires only that the rule (or any instruction made under such a rule) is reasonable. It is not for the arbitrator to decide what the appropriate rules or standards should be - only that they are reasonable. Reasonableness admits of a range of possible rules. This may involve comparison with sectoral norms reflecting the approach of other employers. The further the rule or standard departs from the general standards of conduct expected from an employee, the greater the need for the employer to justify that departure. |
| (92) | The nature of the enquiry into the reasonableness of the rule or standard differs from that which must be adopted when assessing the sanction prescribed for the breach of the rule or standard. The rule or standard is subject to the test of reasonableness described in the preceding paragraph, the sanction for breach of the rule is subject to the test of fairness. This involves an individualised assessment that the arbitrator must make under the next step in the analysis, namely whether the contravention is sufficiently serious to justify dismissal 29 |
Was dismissal an appropriate sanction?
| (93) | The test is whether the employer could fairly have imposed the sanction of dismissal in the circumstances, either because the misconduct on its own rendered the continued employment relationship intolerable,30 or because of the cumulative effect of the misconduct when taken together with other instances of misconduct. The arbitrator must make a value judgment as to the fairness of the employer's decision, taking into account all relevant circumstances.31 This must be a balanced and equitable assessment taking into account the interests of both the employer and the employee. In making this assessment, the arbitrator must give serious consideration to, and seek to understand the rationale for, the employer's rules and standards.32 Other relevant factors include norms in the sector, the Code of Good Practice, these guidelines, and the arbitrator's expertise. To the extent that these sources do not accord with emerging jurisprudence in the courts since 1995, that jurisprudence should constitute a guide. |
| (94) | Determining whether dismissal was an appropriate sanction involves three enquiries: an enquiry into the gravity of the contravention of the rule; an enquiry into the consistency of application of the rule and sanction; and an enquiry into factors that may have justified a different sanction. |
Gravity of the contravention
| (95) | There are two enquiries involved in assessing the gravity of the contravention. The first concerns any sanction prescribed by the employer for the misconduct. The second concerns any aggravating factors that may make the contravention more serious, or mitigating factors that may make it less serious. The first is an enquiry into the sanction as a response to the contravention of the rule, and the second is one into the circumstances of that contravention. |
| (96) | Dismissal as a sanction is normally reserved for serious misconduct. To the extent that a disciplinary code accords with what is generally regarded as serious misconduct, a sanction for such misconduct in a code should generally be considered as appropriate (subject of course to the two further enquiries into consistency and mitigation). To the extent that the code is more severe in its prescribed sanction than generally accepted norms, the employer must give reasons for prescribing the sanction for the contravention of the rule. This is an enquiry into the reasons for the rule and the sanction prescribed in the code. |
| (97) | Because the Code of Good Practice: Dismissal promotes progressive discipline,33 it distinguishes between single acts of misconduct that may justify the sanction of dismissal and those that may do so cumulatively. The Code identifies gross dishonesty, wilful damage to property, endangering the safety of others, assault and gross insubordination as examples of what may constitute serious misconduct that may justify dismissal as a result of a single contravention.34 The Courts have also identified gross negligence and sexual or racial harassment as serious misconduct. This is not a closed list and in some workplaces there may be more severe sanctions for contraventions of rules and standards than in other workplaces. |
| (98) | The second enquiry is into the circumstances of the contravention. Those circumstances may aggravate or mitigate the gravity of the contravention. Aggravating factors may include wilfulness, lack of remorse, not admitting to a blatant contravention of a rule, dishonesty in the disciplinary hearing, the nature of the job, and damage and loss to the employer caused by the contravention. Aggravating circumstances may have the effect of justifying a more severe sanction than one prescribed in the code or normally imposed by employers either generally or in the sector, or may offset personal circumstances which may otherwise have justified a different sanction. Mitigating factors may include pleading guilty, remorse, a willingness to submit to a lesser sanction that may reduce the chance of future contraventions of the rule, and the absence of any damage or loss to the employer. |
| (99) | An employee's disciplinary record may be a relevant aspect of the enquiry into the gravity of the contravention if the employer relies upon the cumulative effect of repeated misconduct by the employee35 or if the misconduct complained of is made up of previous incidents in respect of which warnings have been given. |
Reasons for not dismissing: Has the rule been consistently applied?
| (100) | There are two kinds of consistency required of an employer in the application of a rule and a sanction - consistency over time and consistency as between employees charged with the same contravention. |
| (101) | A party, must raise a claim of inconsistency at the outset of proceedings in concrete terms, identifying the persons who were treated differently and the basis upon which they ought not to have been treated differently.36 If an employee leads evidence that another employee similarly placed was not dismissed for a contravention of the same rule, the employer must justify the difference of treatment. It may do so, for example, by producing the records contemplated in item 3(6) of the Code of Good Practice: Dismissal. Unless the employer can provide a legitimate basis for differentiating between two similarly placed employees, a disparity in treatment is unfair.37 An employer may argue that the chairperson of a previous disciplinary inquiry had imposed too lenient a sanction; in such a case employees who commit similar offences are not entitled to assume that the same sanction will be imposed.38 |
| (102) | It is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for doing so.39 This may include mitigating factors, aggravating factors or relevant aspects of the employee's disciplinary record.40 In collective misconduct, it is permissible to treat those who play a leadership role more severely than those who are simply involved.41 However, it is not permissible to take warnings for individual misconduct into account in determining the sanction for collective misconduct.42 |
| (103) | An employer may justify a change in its approach to disciplining employees for particular misconduct by showing that employees were made aware of the change of approach.43 |
Reasons for not dismissing: Factors that may justify a different sanction
| (104) | Although these factors are often referred to as mitigating factors, this is misleading. Dismissal is not a punishment. It is a rational response to risk management in the affected enterprise.44 Accordingly, the factors that should be taken into account under this heading must be relevant to the risk of further instances of misconduct in the future, and the risk of harm to the enterprise as a result. |
| (105) | The Code of Good Practice: Dismissal identifies three different factors that may weigh in favour of continuing the employment relationship rather than terminating it: the employee's circumstances, the nature of the job and the circumstances of the contravention. |
Employee's circumstances
| (106) | This includes length of service, previous disciplinary record and personal circumstances. Accordingly long service, a clean disciplinary record and a disability caused by an accident at work may indicate a likelihood that continued employment is not intolerable and so weigh in favour of a less severe sanction. Personal circumstances should be work related such as the effect of dismissal on an employee close to retirement. |
Nature of the job
| (107) | The nature of the job may be such that the damage or injury of any further infraction makes the risk of continued employment intolerable. For example, the risk for the employer would be greater for an air traffic controller falling asleep on duty than a labourer. |
Circumstances of the contravention
| (108) | The CCMA and the Courts have considered the following to constitute circumstances that may justify a different sanction: remorse, provocation, coercion, use of racist or insulting language, and the absence of dishonesty. This is not a closed list. |
| 24 | Dolo v CCMA & Others (LC), at paras 19-21, citing Hoechst (Pty) Ltd v CWIU & Another (LAC). Misconduct committed outside the workplace may justify dismissal if it has the consequence of destroying or seriously damaging the relationship between employer and employee, or placing the employee's trustworthiness in doubt. |
| 25 | In Samson v the Commission for Conciliation, Mediation and Arbitration and Others (LC), the employer had increased the relevant sanction from a final written warning to a dismissal. The test for permitting an increase is whether such increase was 'fair' in the circumstances. In this case, because it was the company practice for the senior manager to review disciplinary proceedings and change sanctions and such practice was not prohibited by the Employer's Code, the increase in severity of the sanction imposed was justified. An employer that is considering increasing the sanction must allow the employee an opportunity to make representations before make the decision (South African Revenue Services v CCMA and Others). Rennies Distribution Services v Bierman NO and Others (LC): while a more severe sanction may be imposed on an employee by the Commission, this is only permissible where the disciplinary code in question permits such an increase, and where the employee is warned of the possibility of an increased sanction. |
| 26 | County Fair Foods (Ply) Ltd v CCMA and others (LAC) at para 11 confirmed in Sidumo & others v Rustenberg Platinum Mines Ltd & others (CC) at paras 67 and 176. |
| 27 | Sidumo & others v Rustenberg Platinum Mines Ltd & others (CC) at paras 67 and 181. |
| 28 | Sidumo & others v Rustenberg Platinum Mines Ltd & others (CC) at para 183. |
| 29 | Afrox Healthcare v CCMA & Others [2012] JOL 28779 (LAC): In assessing the appropriateness of dismissal as a sanction, the LAC took account of the employer's business (as a health services provider) and the public's expectation of zero tolerance towards negligence which may impact on the lives of patients. See also National Commissioner, South African Police Serve v Myers & Others [2012] BLLR 688 (LAC) and Metro Cash & Carry Ltd v Tshela (LAC) p 1133 B-F. |
| 30 | Edcon Ltd v Pillimer NO & Others (SCA) at paras 20 - 22: an employer that alleges that the employment relationship has been destroyed must lead evidence to show how the employee's conduct impacted on the relationship. However, conclusion of a broken employment relationship may be apparent from the nature of the offence and/or the circumstances of the dismissal. This was held to be the case where a senior employee had misrepresented his qualifications in a CV and during an interview (Department of Home Affairs and Another v Ndlovu and Others (LAC). |
| 31 | In Miyambo v CCMA & Others (LAC) the Labour Appeal Court emphasised the importance of the trust relationship. While all circumstances must be considered, the trust relationship is a primary consideration in determining the appropriateness of dismissal as a sanction. |
| 32 | See Sidumo & others v Rustenberg Platinum Mines Ltd & others (CC) at paras 75-79 and 179-183. |
| 33 | The idea of progressive discipline is to ensure that an employee can be reintegrated into the organisation in circumstances if the employment relationship can be restored to what it was prior to the misconduct in question (Timothy v Nampak Corrugated Containers (Pty) Ltd (LAC)). |
| 34 | Persistent, deliberate and public insubordination would normally justify dismissal (Motor Industry Staff Association & Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd & Others (LAC) at paragraphs 46-49). |
| 35 | Gcwensha v CCMA & Others (LAC) at para 32. Written warnings, that have lapsed, may be taken into account in determining the fairness of a dismissal if it is shown that the employee has a propensity to commit the misconduct in question (NUM obo Selemela v Northam Platinum Ltd (LAC). |
| 36 | NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section) (JA2013/42) [2014] ZALAC 24 (15 May 2014) at para 39; SACCAWU and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC). |
| 37 | Cape Town City Council v Masitho & others (LAC) at para 14 and 18. |
| 38 | Absa Bank Limited v Naidu and Others (LAC). |
| 39 | SA Transport & Allied Workers Union & others v Ikhwezi Bus Services (Pty) Ltd (LC) at para 25. |
| 40 | In SACCAWU v Check One (Pty) Ltd (LC), the employer was found to be justified in differentiating between employees who had peacefully participated in an unprocedural strike, and who received final written warnings for their conduct, and those who had committed acts of intimidation during the course of the strike and were dismissed for their conduct. |
| 41 | NUM v Council for Mineral Technology (LAC) paras 19-23.) In collective misconduct, it is not unfair if an employer institutes disciplinary action only against those employees who it can identify as having taken part in the misconduct (CEPPWAWU v NBCCI & Others (LAC) at paras 20 - 23). |
| 42 | NUM & another v Amcoal Colliery t/a Arnot Colliery & another (LAC) at para 25. |
| 43 | Cape Town City Council v Masitho & others (LAC) at para 14. |
| 44 | De Beers Consolidated Mines Ltd v CCMA & others (LAC) at para 22. |