dismissal for misconduct south africa

Generally speaking, it is unfair in itself to treat people who have committed similar misconduct differently. Where a code does so, it is generally accepted that when that period expires, a warning lapses and the employee is considered to have a ‘clean’ disciplinary record. Summary dismissal usually happens when an employee commits a serious act of misconduct. The worker should have known about the rule. It is generally accepted that employees may be disciplined for contravening rules only if they knew, or ought to have known, of the existence of the rules. Generally, a rule is deemed unreasonable if it is not relevant to the workplace or to the employee’s work, if the rule requires an employee to perform tasks that are morally repugnant or which employees cannot reasonably be expected to do given their skill levels or status. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. These include a disciplinary record, long service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanour and any other factors that might serve to reduce the moral culpability of the employee. These tests are simply ways of establishing whether the employer can reasonably be expected to continue with the contractual relationship with the employee concerned. See our privacy policy. Three of these requirements are: 1. Dismissal due to misconduct on social media. (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is –. By requiring the employer only to show that there were reasonable grounds for believing that the offence was committed (rather than proving that, on a balance of probabilities, the offence was actually committed) the court significantly reduced the evidentiary burden on employers. The evidence must be examined to determine the precise nature of the employee’s conduct. The test is whether, they serve to indicate that the employee will not repeat the offence. Cell: 082 433 8714 The rule was reasonable and necessary. SOUTH AFRICAN REVENUE SERVICE : Third Respondent . Employees may also argue that they were not bound by the rule because it was unlawful or unreasonable. The rule must then be applied to the facts in order to determine whether the employee’s conduct is covered by the rule. If it is more serious and dismissal is warranted, then a disciplinary enquiry [also known as a disciplinary hearing] is convened. However, it is also unfair because inconsistent application of rules creates confusion and possible doubt about whether a rule in fact exists. Within limits, employment law does not recognise the principle ‘ignorance of the law is no excuse’. The content of this web site does not constitute legal advice, nor does it necessarily reflect the views of the directors of Bregmans Moodley Attorneys Inc or their associates, contributors, authors or suppliers. Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct.     Gardens JUDGMENT . A wise employer will therefore ensure that the rules of the workplace are set out in a comprehensive code of conduct, which brings the rules and the sanctions that can be expected for non-compliance to the attention of employees. New Variant of Covid-19 Discovered . dismissed for operational reasons, his dismissal would only take effect on 30 November 2009. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. If the misconduct is minor, a warning is issued to the employee. However, in such cases it must still be proved that the employee was aware that he or she was required to submit to the search, and that the employee wilfully and unreasonably refused to be searched. In order for a dismissal to be fair, employers are legally required to adhere to substantive and procedural fairness guidelines. Our courts follow the precedent set by tribunals and courts in the UK as we have no reported Labour Court judgments in South Africa dealing with dismissals based on online misconduct outside the workplace. The law in South Africa with regards to social media conduct is underdeveloped. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Schedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the […] Whether the employer could reasonably have been expected to continue with the employment relationship: Another ‘test’ frequently used by courts when they assess the appropriateness of dismissals is the effect that the employee’s misconduct would have on the employment relationship. • Was dismissal the appropriate sanction for the contravention of the rule? This means that the employer’s decision to dismiss must stand unless the tribunal is satisfied (and can demonstrate) that the employer’s decision to dismiss is so unreasonable that no reasonable person would have taken such a decision in the circumstances. Save my name, email, and website in this browser for the next time I comment. The second stage of inquiry in any misconduct case entails determining whether the employee’s conduct in fact breached the rule. E-mail: bernard@capelabour.co.za     8001,  021-423-3959 The LC accepted (without explicitly finding as such) that the misconduct had been proven but made no attempt to analyse the evidence to determine the nature of the transgression. Grogan, his book Dismissal, Juta 2013 on page 197 stated Compensation for Occupational Injuries and Diseases Amendment Bill and it’s inclusion of Domestic Workers. 1A1 Notice of Disciplinary Enquiry 1B1 Detailed Guidelines: ... Labourwise is an online advisory service for employers in South Africa. A disciplinary code should be progressive in nature and not punitive, meaning that measures for less serious transgressions should aim at correcting the behaviour of the employee and not to punish. On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct. For further information Dismissal for misconduct, do not hesitate to contact Bernard Reisner: W.Tel no. DISMISSAL FOR ALLEGED MISCONDUCT This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law Go to www.purshotam.co.za for an updated version of this document plus many more aids v55 NB: The law does NOT require that each and Notify me of follow-up comments by email. A dismissal for misconduct can only really be seen to be fair if the following is true: The worker broke a rule at the workplace. The first requirement in every case concerning the fairness of a dismissal for misconduct is that the employer must prove that the employee contravened a rule applicable to the workplace. The requirement that employees must be aware of the rules of the workplace gives rise to the further principle that employers must apply their rules consistently. ✯  Review Us. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired. The most common source of legal rules is the employer’s disciplinary code. As a general rule, for insubordination to constitute misconduct justifying a dismissal it has to be shown that the employee deliberately refused to obey a reasonable and lawful instruction by the employer. It's common for such an employer to feel that dismissal of the dishonest employee is the only safe course of action because it's believed that a person capable of stealing will steal again or will steal more in future. Or they may say that the employment relationship has been rendered ‘intolerable’. Employers should have a Disciplinary Code. Misconduct can take on many forms although the legal basis for dismissal is the same in most cases. …. Not all misconduct will justify the sanction of a dismissal, only serious misconduct will. 1. TLHOTLHALEMAJE, J . Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice.. Consequently, unlike Mr Marneweck, the applicant in this matter was still in the respondent‟s employment when he was charged and dismissed for misconduct before the notice period of his impending retrenchment had expired, or even begun. Dismissal should be reserved for cases of serious misconduct or repeated offences. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188, which provides: When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. The general principles relating to the use of past warnings are that the offence for which the employee is dismissed should be similar to the offences for which the employee received the previous warnings, and that the warnings should be relatively fresh and valid.  bernard@capelabour.co.za Bregman Moodley Attorneys Inc. 2015/089214/21, Physical Address: Suite 314, 3rd Floor, Office Towers, Killarney Mall, 60 Riviera Road, Killarney, Johannesburg, South Africa, Associates: Melani Scholtz, Sasha Goldstein & Abdul Buckus. Whether the sanction was in accordance with the employer’s disciplinary code: The sanction prescribed by a disciplinary code for a specific disciplinary offence is generally regarded as the primary determinant of the appropriateness of the sanction. The courts may say that the ‘trust’ upon which the employment relationship was founded was destroyed. ... COVID-19 Vaccine Plan For South Africa. A decision is arrived at on the balance of probabilities. A disciplinary hearing in some form or another, is still a requirement in terms of South African labour law. An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning.     Cape Town Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. According to South Africa’s labour laws, an employer cannot dismiss you without a fair disciplinary hearing. Similarly, if the rule is unreasonable because it enjoins employees to perform work or actions that they cannot reasonably be expected to perform, a breach of the rule or instruction cannot be treated as a disciplinary infraction. In this situation, the employee can be summarily (instantly) dismissed. Presiding officers in internal disciplinary inquiries are required to exercise their discretion in respect of sanction reasonably, honestly and with due regard to the general principles of fairness. • Was the employee aware of the rule, or could he or she reasonably be expected to have been aware of it? A degree of blameworthiness is therefore ascribed to the employee. Employees can be dismissed for one of three reasons: Misconduct; Incapacity; Operational requirements; The scenario above the dismissal is for alleged misconduct. Refusal by employees to subject themselves to searches may be treated as misconduct. The employer's case in the Labour Appeal Court was that the sanction of dismissal was appropriate for the misconduct of which the employee was guilty. It should therefore not be imposed if a lesser penalty would serve the purpose. An employee’s disciplinary record may be taken into account when considering whether the employee should be dismissed for a particular offence. These are, basically, warnings, demotion, suspension and dismissal. “[29] I have to determine whether dismissal was an appropriate sanction for this contravention, The Code of Good Practice: Dismissal Item 3 clause 4 stipulates that dismissal would be appropriate where the misconduct was serious and the code gave gross insubordination as an example. Website: www.capelabour.co.za, 3 De Lorentz These documents typically set out the various offences for which employees may be subjected to discipline, and the sanctions that may be imposed for commission of these offences. Publication of rules is a general principle of fairness and good labour relations. (4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Most disciplinary codes state the period for which warnings will remain current. The Code of Good Practice: Dismissal, gives as examples of offences that may justify dismissal at first instance gross dishonesty, wilful damage to the employer’s property, physical assault on the employer, a colleague or a customer and gross insubordination. Employees accused of misconduct are thus faced with a stark choice: They can either deny the commission of the offence in the hope that the employer will not be able to prove it; or they can ‘confess’ and apologise in the hope that their remorse will count in their favour when mitigation is considered. Section187. Whether a lesser sanction would have served the purpose: A theme expressed in many judgments and awards, echoed in the Code of Good Practice: Dismissal, is that dismissal is the ‘ultimate sanction’ in the employment context. A common dilemma, with which employers in all areas of industry […] 10 000 New Cases Recorded In SA. OVERVIEW: DISMISSAL FOR MISCONDUCT 2. The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures. Employers are permitted to introduce rules to cope with changing demands and circumstances. Misconduct Misconduct is the most common justification for dismissal in South Africa, but there is no definition for it in statutory of business law. The employer should formulate and publish a disciplinary code that is made available to every employee and is explained to him or her if s/he is not sufficiently literate. However, when they do this, they must ensure that the new rules are brought to the attention of employees. Once the dismissal is proved, the employer is required to prove that the dismissal was both substantively and procedurally fair. An employer relying on irreparable damage to the employment relationship to justify a dismissal should lead evidence in that regard, unless the conclusion that the trust relationship has been broken is apparent from the nature of the offence and/or the circumstances of the dismissal. This includes wilful damage to property, physical assault, gross dishonesty, fraud etc. Source: Emma Whitelaw, an Associate in the Employment Law Department at Bowman Gilfillan, Cape Town, details the issues. Employers have only a limited range of penalties that may be lawfully imposed. Dismissal for misconduct Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. If misconduct of an employee is so serious that it undermines the mutual trust and confidence between the employee and their employer and merits instant dismissal, this is known as gross misconduct. Johan Botes, Partner, Julia Olley and Kirsty Gibson, from the Employment and Compensation Practice Group in Johannesburg, discuss the importance of effectively managing a virtual workforce and the process for dismissing an employee during the nationwide lockdown in South Africa. South Africa: Dismissing an employee during the COVID-19 lockdown. Dismissals for misconduct (4) Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. The Labour Relations Act serves to protect the employee’s rights according to the constitution, preventing them from any suffering caused by unfair dismissal in South Africa. A common dilemma, with which employers in all areas of industry are faced, is the question of when dishonesty by an employee is sufficient to justify dismissal. Dismissal – real basis for dismissal considered – dismissal in essence one for incapacity (poor performance) – dismissal for misconduct improper, incompetent and unfair – employer should have applied provisions in Schedule 8 relating to poor performance  082-433-8714 The CCMA has frequently upheld the dismissal of employees fired for misconduct. However, it is generally accepted that these codes are merely guidelines. If a rule is unlawful, either because it compels an employee to perform an unlawful act or because the rule itself is prohibited by statute, the employee is free to disregard it. (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. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. Disciplinary codes are regarded as guidelines. Automatically unfair dismissals. Such measures could include informal counselling, verbal warnings, written warnings, final written warnings and accumulative final written warnings for “serial” offenders. Heard: 4 February 2016 . Copyright © 2020 Bregman Moodley Attorneys | Designed By, Specialist Divorce Lawyers In Johannesburg, Medical Boarding – dismissal for incapacity. The courts have made it clear that an employer should at least allow the employee to plead in mitigation, and that the employer should at least consider the possibility of a lesser sanction. Dismissal for Misconduct. A variety of considerations may be relevant when considering a plea in mitigation. - "However, unlike previous judgments, the court focused on the fact that the employee had 30 years' service and a clean disciplinary record. 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-. This field is for validation purposes and should be left unchanged. For example, an employee is summarily dismissed for theft and fraud following a disciplinary enquiry and his employment is terminated immediately. Even though every endeavour has been made as to the accuracy of the information, we cannot be held responsible for any errors and/or omissions. Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or aggravating) factors constitutes a separate inquiry. Although cases of misconduct must each be decided on their own facts, every case requires the employer to seek the answers to the following question when assessing the fairness of a dismissal: • Was there a contravention of a rule regulating conduct in the workplace, or of relevance to the workplace? In (Wooltru.Case 1989), the court equated insolence with impudence, cheekiness, disrespect or rudeness. This test is whether, when there is conflicting evidence on a particular point, one version is more probable than the other. For example, a rule might require employees to submit to searches on leaving the employer’s premises. (iv)     dismissal was an appropriate sanction for the contravention of the rule or standard. As a general rule, termination without notice - that is, summary dismissal - is permissible only if the employee is in material breach of the employment contract. Delivered: 31 August 2016 . The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. The employer should first consider factors such as the employee's length of service and disciplinary record; 2. In contrast, a dismissal for misconduct is based on the employee’s [conduct in respect of which fault may be attributed to the employee, for instance the] intentional or negligent non-compliance [with] company rules or standards. The legislature has also approved a general code for those employers who do not have their own codes, and against which the fairness of the particular codes can be assessed. Any dishonest conduct by employees can cause an employer to, figuratively, see red. This code should list offences and appropriate measures that may be taken by the employer in the event of breach. T A tribunal confined to assessing the reasonableness and fairness of the decision to dismiss may interfere with the employer’s decision only if that decision is found to be unreasonable and unfair when assessed against an independent standard. Home » BLOG » Labour law articles » Dismissal for misconduct, SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity. A rule is accepted as legitimate and valid if it is lawful and can be justified. THE DISCIPLINARY HEARING 3.1 Preparation for disciplinary hearing 3.2 Conducting the disciplianry hearing : 021 423 3959 Fax: 021 423 2105 This follows logically from the requirement that employees cannot be seen to have committed misconduct if they did not know, or could not reasonably have known beforehand that the employer regarded his or her actions as misconduct. The LRA casts the onus of proving that there was a dismissal on the employee, and the onus of proving that the dismissal was fair on the employer. Nor does the law permit an employee to shelter behind the instruction or consent of a superior if the employee knows that the instruction was unlawful, or the superior was aware that the employee’s action was wrong. The effect of this provision is that, if the ‘existence’ of the dismissal is in dispute, the employee bears the burden of placing facts before the court which warrant the conclusion that the termination of the employment relationship constituted a dismissal as defined in the LRA. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Before an employee can be dismissed for contravening a rule, it must be established that the rule itself was valid; ie lawful and reasonable. It is widely accepted that, the longer the period of service with the employer, the more seriously the employer should consider mitigating factors. Introduction: [1] The Applicant seeks to review and set aside the arbitration award issued on 10 November 2013 by the Second Respondent (the Commissionein terms of which it wasr), found that his dismissal was fair. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. Resignation, in writing, with immediate effect, is no longer legal and binding, Latest Covid-19 regulations as from 01 October 2020. The Code of Good Practice: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an ‘appropriate’ remedy. • Is the rule reasonable and valid? THE NATURE OF DISCIPLINE 2.1 There must be a rule or standard 2.2 The rule must be valid 2.3 The rule must be consistently applied 2.4 The employee must be aware of the rule 2.5 Corrective approach 3. This is to be found in schedule 8 of the LRA. 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