Disciplinary Sanction Selection (or penalty) is a critical final step in disciplinary hearings when an employee has been found guilty.
It is possible that an employer proves an employee’s guilt yet a subsequent dismissal is held to be unfair on grounds that the sanction of dismissal is too harsh. It is not uncommon for the CCMA, or a bargaining council, to hold that the punishment does not fit the crime. Disciplinary sanctions are meant to be proportionate to the severity of the misconduct. It follows that less severe acts of misconduct warrant lesser sanctions, and only the most severe forms of misconduct deserve dismissal.
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 intolerable. 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, a client or customer; and gross insubordination. The application of progressive discipline is therefore encouraged. Disciplinary sanction typically include verbal warnings (normally valid for 3 months), written warnings (normally valid for 6 months), and final written warning (normally valid for 12 months).
When a commissioner is assessing the fairness of a dismissal sanction, the “totality of circumstances” must be considered, including the importance of the rule breached, the reason for the sanction, the harm caused by the employee’s conduct, the employee’s service record, whether additional training and instruction may result in the employee not repeating the misconduct, and the effect of dismissal on the employee. When dismissal is deemed to be an unduly harsh sanction, it amounts to substantive unfairness, and leads to reinstatement with a lesser sanction being imposed.
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