DISMISSAL FOR MISCONDUCT

In the workplace, misconduct is the concept that is used when an employee disregards the rules of the workplace. These rules may arise from:

(a) The employee’s contract of employment (express or implied);

(b) General standards accepted as applicable to the workplace;

(c) Disciplinary codes.

The distinguishing characteristic of workplace misconduct is that the employee is responsible for their actions. However, it is not always possible to draw a clear line. Negligence may arise from either incapacity or misconduct.

Guidelines in cases of dismissal for misconduct

Any person who is deeming whether a dismissal for misconduct is unfair should consider –

(a) whether or not the employee contravened a rule or standard regulating conduct in, or relevant to, the workplace; and

(b) if a rule or standard was contravened, whether or not –

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be aware of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

Determining the substantive fairness of a dismissal by means of factual enquiries

Is there a rule?

The existence of the rule is the first and normally the easiest of the factual enquiries into substantive fairness.

A rule or standard contained in a disciplinary code, collective agreement, contract, or policy is normally sufficient proof of 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 co-operate or respect co-employees, not 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).

Some rules arise from the duties imposed by legislation such as the Occupational Health and Safety Act 85 of 1993 (OHSA). 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.

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 –

(a) 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

(b) 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.

If there is a dispute about 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?

The determination of this factual issue is often not disputed because the rule or standard is frequently contained in the employer’s disciplinary code. If the employee disputes knowledge of the rule of 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.

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 is it not necessary to communicate them.

Did the employee contravene the rule?

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.

There may be more than one factual question and each need 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 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 circumstance 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?

Is the rule or standard a valid or reasonable rule or standard?

It is the employer’s responsibility to determine the rules and standards in the workplace. It is not the arbitrator’s role to second-guess those rules. This does not constitute deference to the employer, but compliance with the code. 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.

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 are not a lawful instruction. An instruction to seduce clients or give evidence against one’s employer in contrary to public policy.

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.

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, the sanction for breach of the rule is subject to the test of fairness. This involves an individualised assessment that the arbitrator must make to assess whether the contravention is sufficiently serious to justify dismissal.

Was dismissal an appropriate sanction?

The test is whether the employer could fairly have imposed the sanction of dismissal in the circumstance, either because the misconduct on its own rendered the continued employment relationship intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct. The arbitrator must make a value judgement as to the fairness of the employer’s decision, considering all relevant circumstance. This must be a balanced and equitable assessment considering 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. Other relevant factors include norms in the sector, the Code of Good Practice, these guidelines, and the arbitrator’s expertise.

Determining whether dismissal was an appropriate sanction involves three enquiries:

1. an enquiry into the gravity of the contravention of the rule;

2. an enquiry into the consistency of the application of the rule and sanction; and

3. an enquiry into factors that may have been justified a different sanction.

Gravity of the contravention

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 and mitigating factors; aggravating factors being those factors that may make the contravention more serious or mitigating factors that may make it less serious. This first is an enquiry into the sanction as a response to the contravention of the rule, and the second is one into the circumstance of that contravention.

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. It is an enquiry into the reasons for the tule and the sanction prescribed in the code.

Because the Code of Good Practice: Dismissal promotes progressive discipline, 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 because of a single contravention. The courts have also identified gross negligence and 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.

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.

An employee’s disciplinary record may be a relevant aspect of the enquiry into gravity of the contravention if the employer relies upon the cumulative effect of repeated misconduct by the employee or if the misconduct complained of is made up of previous incidents in respect of which warning have been given.

Reasons for not dismissing: has the rule been consistently applied?

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. 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. Section 3(6) of the code requires of employers to 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. Unless the employer can provide a legitimate basis for differentiating between two similarly placed employees, a disparity in treatment is unfair.

It is not inconsistent to treat employees charged with the same misconduct differently if there is a fair and objective basis for doing so. This may include mitigating factors, aggravating factors, or relevant aspects of the employee’s disciplinary record. In collective misconduct, it is permissible to treat those who play a leadership role more severely than those who are simply involved. However, it is not permissible to take warnings for individual misconduct into account in determining the sanction for collective misconduct.

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 the approach.

Reasons for not dismissing: factors that may justify a different sanction

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 working environment. Accordingly, the factors that should be considered must be relevant to the risk of further instances of misconduct in the future, and the risk of harm to the business and employment relationship as a result.

The Code of Good Practice: Dismissal identifies three different factors that may weigh in favour of continuing the employment relationship rather than terminating it.

1. The employee’s circumstances;

2. The nature of the job; and

3. The circumstances of the contravention.

Employee’s circumstances

This includes the length of service, previous disciplinary record, and personal circumstance. Accordingly long service, a clean disciplinary record and 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

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.

Circumstance of the contravention

The CCMA and the Courts have considered the following to constitute circumstance that may justify a different sanction: remorse, provocation, coercion, use of racist or insulting language, and the absence of dishonesty. But even so, and given all the factors mentioned, it is not always easy to determine whether a dismissal is appropriate.