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 clean 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. An employer is not required to take mitigating circumstances into account merely because they evoke sympathy.

Mitigating and Aggravating Factors

The test is whether, taken individually or cumulatively, 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 mitigating is considered.

For further information on any labour related matters, you can contact
Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959