1 Contemporary Labour Law Vol 15 No 10 May 2006. The disciplinary sanction When is dismissal appropriate? by PAK le Roux & Carl Mischke E. veryone chairing a disciplinary issue of consistency, it is worth focusing hearing has to perform a balancing some attention on an aspect of the act balancing a proven disciplinary process that is often neglected disciplinary offence on the one hand and the or, at the very least, overshadowed by the appropriate disciplinary sanction on the other complexities entailed in proving the hand. Deciding between dismissal and some commission of the disciplinary offence. other sanction is not always easy. The There is often a sense that the offence question essentially boils down to determining speaks for itself that once it is proven, whether corrective disciplinary measures, dismissal is inevitable, that dismissal is the such as a final written warning, would be only sanction that could possibly be appropriate or whether dismissal for appropriate.
2 In numerous instances, finding misconduct is warranted. Over and above proof that the employee committed the considerations such as the nature and offence in question is the focus of seriousness of the offence, there are disciplinary proceedings considerations complicating factors and principles: each of appropriateness of the sanction are often case must be considered on its merits, while given short shrift by both the employer and not losing sight of consistency. the chairperson. This may well be limited to Not all disciplinary offences justify dismissal asking a few questions or raising a couple and there seems to be an ingrained sense as of facts in aggravation and mitigation almost to what offences are more serious than others as an afterthought to a hearing that dealt and which warrant dismissal or even with hundreds of pages of documents or the summary dismissal: theft, assault and fraud evidence of a large number of witnesses.
3 Come to mind. But there are easy cases and Yet the issue of the disciplinary sanction is hard cases: not every assault will, in itself, a pivotal one not only because the Code warrant dismissal there may be factual of Good Practice: Dismissal (Schedule 8 of questions such as provocation that need to the Labour Relations Act 66 of 1996, the be resolved beforehand. LRA) posits the question of appropriateness Leaving aside other considerations such as of the sanction as a requirement, but because the employee's knowledge of the rule or the it goes to the very heart of workplace Managing Editor : P A K Le Roux Published by Gavin Brown & Associates Contributing Editor : Carl Mischke Box 31380 Tokai 7966.
4 Hon. Consulting Editor : Landman Tel : 021 788-5560 Fax: 021 788-1811. Contemporary Labour Law Vol 15 No 10 May 2006. discipline and dismissal for misconduct. Dismissal is employee's circumstances (including the supreme penalty for misconduct and it should length of service, previous disciplinary not be imposed lightly, irrationally or arbitrarily. In record and personal circumstances), the essence, there must be some sense of balance between nature of the job and the circumstances the offence, as proven on the facts of the case, and of the infringement itself.. the sanction of dismissal. In the absence of this sense The principles contained in the Code of Good Practice of balance, the dismissal for misconduct will be establish a basic framework for an evaluation of the substantively unfair.
5 Disciplinary sanction. Dismissal, the ultimate sanction, is not appropriate in each and every case but there are In South African Labour law, the requirement that the serious offences that may warrant dismissal even for disciplinary sanction (usually dismissal) must be the a first offence. In deciding the appropriate sanction, appropriate sanction is not new and it pre-dates the the relevant factors include the seriousness and the LRA by more than a decade. As the Industrial Court circumstances of the misconduct, the nature of the job gradually developed an unfair dismissal jurisprudence, and the employee's personal circumstances (including the question repeatedly arose as to whether an his or her employment record).
6 Employer had not only a valid reason for a dismissal, but whether the reason was also a fair reason in It is easy, of course, to summarise the principles other words, and seen broadly, whether the offence formulated in the Code of Good Practice in grid form justified or warranted dismissal. for making a decision as regards the sanction; it appears straightforward to give separate consideration to each Over time, this question experienced a split into a of the points and principles listed and thereby to go number of subsidiary questions or considerations, through the motions of considering the appropriateness including a consideration of the nature and perceived of the sanction.
7 However, the factors listed in item seriousness of the offence, the impact of the offence 3(5) are not an exhaustive list these are merely on the employment relationship and the circumstances some of the factors the employer should take into of the employer and the employee. And, also with the account. Nor should any of these factors be seen as passing of time, these factors and considerations have, decisive in themselves; to a greater or lesser degree, to a significant extent, hardened almost into a checklist these factors are relevant to the process, not a full and to be run through when the fairness or otherwise of a comprehensive set of norms or standards against which dismissal for misconduct is considered.
8 The appropriateness of the sanction can be considered The Code of Good Practice (see SIGASA v Kemklean Hygiene Systems  4 BLLR 494 (CCMA) at 501). Item 7(b)(iv) of the Code of Good Practice provides that the fairness of a dismissal for misconduct is also The offence and its contexts determined by reference to the appropriateness of It is often extremely difficult for a chairperson to look dismissal in the circumstances. Item 3(4) states that further than the offence and the evidence led in support dismissal is not appropriate for a first offence, except of the employer's case. The offence, its commission in the case of serious offences that makes a continued and the proof of its commission loom large in disciplinary employment relationship impossible.
9 Serious cases listed proceedings naturally, as a finding that the employee here include gross dishonesty, wilful damage to the committed the disciplinary infraction is a necessary property of the employer, endangering the safety of condition for the imposition of any disciplinary sanction. others, physical assault or gross insubordination. The offence itself often forms almost the sole focus of When it comes to deciding the appropriate sanction, the disciplinary proceedings, eclipsing any in-depth item 3(5) offers the following guidance: consideration of the sanction. There is often an almost explicit assumption that once the commission of the When deciding whether or not to impose offence has been proven, dismissal is the only the penalty of dismissal, the employer should in addition to the gravity of the conceivably appropriate sanction; the proof of the misconduct consider factors such as the infraction is seen as sufficient to justify the dismissal as well.
10 Page 92. Contemporary Labour Law Vol 15 No 10 May 2006. In determining the appropriate sanction, it is necessary the realization that the employee is a thief, to look not at the offence itself and in isolation, but also the continuation of their relationship can to consider the wider context of the employment be expected to become intolerable, at relationship. The fundamental question is to ask whether least for the employer. Thenceforth the a continued employment relationship has been rendered employer will have to check continually whether the employee is being honest. impossible by the (proven) conduct of the employee. That the thing stolen is of comparatively For a considerable length of time, the courts have little value is not relevant; the correct test focused attention on this test.