Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. 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. This is to be found in schedule 8 of the LRA. However, it is generally accepted that these codes are merely guidelines.
Guidelines in cases of dismissal for misconduct.
Essential questions in misconduct cases:
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?
• Is the rule reasonable and valid?
• Was the employee aware of the rule, or could he or she reasonably be expected to have been aware of it?
• Was dismissal the appropriate sanction for the contravention of the rule?
Existence of a rule:
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 most common source of legal rules is the employer’s disciplinary code. 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.
Before an employee can be dismissed for contravening a rule, it must be established that the rule itself was valid; ie lawful and reasonable. 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. 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.
Employees may also argue that they were not bound by the rule because it was unlawful or unreasonable. 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. A rule is accepted as legitimate and valid if it is lawful and can be justified.
Contravention of the rule:
The second stage of inquiry in any misconduct case entails determining whether the employee’s conduct in fact breached the rule. The evidence must be examined to determine the precise nature of the employee’s conduct. The rule must then be applied to the facts in order to determine whether the employee’s conduct is covered by the rule. For example, a rule might require employees to submit to searches on leaving the employer’s premises. Refusal by employees to subject themselves to searches may be treated as misconduct. 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.
Onus of proof:
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. 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. Once the dismissal is proved, the employer is required to prove that the dismissal was both substantively and procedurally fair.
Standard of proof:
This test is whether, when there is conflicting evidence on a particular point, one version is more probable than the other. A decision is arrived at on the balance of probabilities. 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.
Knowledge of 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. 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. Within limits, employment law does not recognise the principle ‘ignorance of the law is no excuse’. 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.
Publication of rules is a general principle of fairness and good labour relations. 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. Employers are permitted to introduce rules to cope with changing demands and circumstances. However, when they do this, they must ensure that the new rules are brought to the attention of employees.
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. Generally speaking, it is unfair in itself to treat people who have committed similar misconduct differently. However, it is also unfair because inconsistent application of rules creates confusion and possible doubt about whether a rule in fact exists.
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. 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.
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. 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.
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. Disciplinary codes are regarded as guidelines.
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. It should therefore not be imposed if a lesser penalty would serve the purpose. Employers have only a limited range of penalties that may be lawfully imposed. These are, basically, warnings, demotion, suspension and dismissal.
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. The courts may say that the ‘trust’ upon which the employment relationship was founded was destroyed. Or they may say that the employment relationship has been rendered ‘intolerable’. These tests are simply ways of establishing whether the employer can reasonably be expected to continue with the contractual relationship with the employee concerned. 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.
The gravity of the offence:
The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. 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. 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.
The employee’s disciplinary record
An employee’s disciplinary record may be taken into account when considering whether the employee should be dismissed for a particular offence. 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. 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. Most disciplinary codes state the period for which warnings will remain current. 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.
The employee’s length of service:
It is widely accepted that, the longer the period of service with the employer, the more seriously the employer should consider mitigating factors.
Mitigating and aggravating factors:
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. A variety of considerations may be relevant when considering a plea in mitigation. 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.
The test is whether, they serve to indicate that the employee will not repeat the offence. 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.
For further information Dismissal for misconduct, do not hesitate to contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714