Misconduct is 1 (one) of 3 (three) grounds recognised by the Labour Relations Act (LRA) to justify the dismissal of employees. Employees, who commit misconduct, can be held accountable for their actions, and dismissal is seen as the ultimate sanction. Section 7 of the Code of Good Practice: Dismissal is aimed at establishing substantive fairness. The employer bears the onus of proving the fairness of a dismissal (as per section 192 of the LRA) and to establish compliance with the guidelines.
Breach of rule
Conduct only becomes misconduct if it breaches a rule. The employer should first enquire whether or not the employee indeed contravened a rule. Not just any rule, however, but a rule or standard regulating conduct in, or of relevance to, the workplace. Employers are urged to adopt disciplinary rules that establish the standard of conduct required of their employees and provide that their form and content of standards and rules will vary according to the size and nature of the employer’s business.
The source of workplace rules is multifarious. Some may be contained in letters of appointment, induction booklets, disciplinary codes, and collective agreements; others may operate by way of statute (for example, health and safety legislation – Occupational Health & Safety Act (OHSA)) or custom and practice; and yet other may be inferred from the common law. The first stage of the enquiry is concerned neither with the reasonableness of the rule nor with the employee’s knowledge of it, but only with whether there is in fact an applicable rule which is at least relevant to the workplace.
This provision may be important because it may strike at rules that claim to regulate workers' extra-mural activities – unless there is some demonstrable link between what they do in their own time and the requirement of the workplace. A general rule, such as one finds in some disciplinary codes, that conviction in a criminal court may lead to dismissal will therefore have to be applied with some caution.
Once the existence of the rule or standard has been established, the next enquiry is whether or not the employee contravened it – a purely factual question determined on a balance of probabilities with recourse, if necessary, to the onus of proof borne by the employer. If the probabilities are evenly weighed, the employee must get the benefit of the doubt which may exist as to their guilt.
Legitimacy of rule
Once an employee is found to have contravened a workplace rule or standard, it does not necessarily follow that they should be held accountable for having done so. At this stage of the enquiry, the decision-maker (employer) must consider whether the rule or standard which has been broken was valid or reasonable.
Generally, a rule or standard will pass muster if it is lawful and justifiable with reference to the needs and circumstances of the employer’s business. Negotiated rules will, it seems, be less rigorously tested that those which are unilaterally imposed by the employer, particularly if they are embodied in a collective agreement. If the rule is found to be invalid (for example, because it is in contravention of the Basic Conditions of Employment Act (BCEA)) or unreasonable (for example, because it lacks any form of economic rationale), a dismissal for infringing it will be substantively unfair.
Knowledge of rule
An employee will escape liability not only if the rule itself is invalid or unreasonable, but also if they were ignorant of a legitimate rule. But proving actual knowledge of a rule may be hard work, particularly when an employee falsely pleads ignorance. To avoid this difficulty, an employer need to prove either that the employee was aware or that they could reasonably be expected to have been aware of the rule, thus importing an element of objectivity into the test.
An employer’s rules must create certainty and consistency in the application of discipline and the rules should be clear and made available to employees in a manner that is easily understood. All rules in the workplace need not be spelled out in meticulous detail to employees (for example, a rule against theft that may be so well established and known that it is not necessary to communicate it). It would seem that the higher the status of the employee, the stronger the presumption that they were aware, or should have been aware, of all rules including the subtler implied variety.
Once it is established that an employee contravened a workplace rule, that the rule was valid or reasonable and that the employee had knowledge of the rule, the next enquiry is whether the employer applied the rule consistently. Employers 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 2 (two) or more employees who participate in the misconduct under consideration.
An employee who has in the past been repeatedly let off without so much as a warning for minor pilfering could raise the principle of parity if they suddenly are dismissed on a subsequent occasion. Where 2 (two) or more employees were involved in the same misconduct, one could justly complain of they were dismissed and the other not.
Employers must take care to ensure that 2 (two) cases are indeed distinguishable before meeting different penalties, which is sometimes no easy task. For example, measuring respective degrees of blame in a workplace fight may present problems. Also, the application of the parity principle may be problematic in the application of an employer’s disciplinary regime at different levels of the company hierarchy. An employer must ensure that equal justice applies to all ranks.
Dismissal must be an appropriate sanction for the contravention of the rule or standard. The courts have endorsed the concept of corrective or progressive discipline – meaning that employers are required to endorse it too. Corrective discipline means that it is aimed at righting rather than retribution, and progressive discipline refers to a system of graduated discipline measures such as counseling and warnings.
The thrust behind these concept endorsements is clear: tolerance must replace terror as a method of ensuring that employees discharge their duties properly – reform rather than retribution is the objective of discipline in the workplace. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline and repeated misconduct warrants warnings, which themselves may be graded according to degrees of severity – up to final warnings or other action short of dismissal for more serious infringements.
Dismissal should be reserved for cases of serious misconduct or repeated offenses. It is generally not appropriate to dismiss an employee for a first-time offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of such serious misconduct 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 colleague, client or customer, and gross insubordination”. The list is illustrative, not exhaustive.
An employment relationship becomes intolerable when the employee steals from or defrauds the employer, intentionally damages the property of the employer, or beats the employer or their customers up. But it does not when the employee merely breaches a workplace rule such as taking an extended lunch break – at least the first time.
Employers are not expected to retain the services of employees who have by their intentional and blameworthy conduct destroyed the trust upon which the employment relationship rests to an extent that it can’t be revived.
Offenses such as those listed tend to do so at first instance; minor misdemeanours merely erode it, which is why the employer is expected to make some attempt to repair the damage by corrective or progressive discipline and this may be so even in cases of serious misconduct. The gravity of misconduct is not in itself definitive. The employer must consider in addition factors such as the employee’s circumstance (including length of service, previous disciplinary record, and personal circumstance), the nature of the job, and the circumstance of the infringement itself. The weight of these factors will, of course, correlate inversely with the gravity of the misconduct. The employer must be able to show that they were at least considered before the decision was taken to dismiss an employee.
A first offender should be treated more leniently than a repeat offender. Length of service and personal circumstances create more difficulty. The principles of natural justice do not say that offenders should be treated more leniently if they have been around for longer; indeed, seniority could arguably work the other way. So, too, with personal circumstances: why should an employee with a family to support be given a second chance and an unattached one not? Moreover, employers inclined to exercise compassion by the personal circumstances and length of service of employees could run foul of the requirement of consistency in the application of discipline discussed above.