Chapter 10

Dismissal for misconduct

INTRODUCTION

• Dismissals for misconduct – is “dismissals” when employees are dismissed for a fair
reason (substantively fair) and that was effected in terms of a fair procedure.

• Misconduct = do not comply with a policy or rule that governs their employment.

• Employer to show that dismissal was fair reason and/or that it was done by way of
a fair procedure.

• S188 of the LRA provides that a fair reason relates to the employee’s misconduct or
incapacity or the employer’s operational requirements.

• Fair reason and fair procedure – defined in Schedule 8 of the Code of Good
Practice: Dismissal.
DEFINING MISCONDUCT

• LRA provides very little guidance on meaning of misconduct – some guidance is

found in the Code of Good Practice: Dismissal - schedule to the LRA.

• Code is not law but has strong persuasive value.

• The Code promotes corrective and progressive discipline – suggests it’s generally
not appropriate to dismiss an employee for a first offence – except if the
misconduct is serious and it makes a continued employment relationship
intolerable.

• The Code regards the following as examples of serious misconduct that would
justify dismissal:

• Gross dishonesty; Wilful damage to property; Gross

insubordination;

• Physical assault on the employer, fellow employee, client or customer.

• In addition to the seriousness of the misconduct – factors such as the employee’s
personal circumstances, nature of the job, and the circumstances of the
misconduct must be considered.

• The Code further requires the penalty of dismissal to be applied consistently with
the way in which it has been applied previously to the same misconduct.

• The Code attempts to be a guide in dealing with misconduct dismissals – but it

cannot always provide the answers.
SUBSTANTIVE FAIRNESS FOR MISCONDUCT DISMISSALS

• The Code provides some guidelines to be considered. These guidelines require

answers to the following questions:

1. Has the employee contravened a rule or standard?

2. If so, was the employee aware, or could he or she reasonably be expected
to have been aware of the rule or standard?
3. Has the rule or standard been consistently applied by the employer?
4. Was dismissal an appropriate sanction for the contravention of the rule or
standard?

• This does not imply that every rule of standard must exist in writing and be
formally conveyed to the employee – some rules are well established (or common)
that there is no need for them to be in writing.

• For the sake of certainty – advisable for the employer to have rules in writing.
SPECIFIC MISCONDUCT JUSTIFYING DISMISSAL

Over the years, the labour courts and tribunals have identified forms of misconduct
that justify dismissal.

1 Dishonesty

• It can include theft, fraud, corruption, misrepresentation of information.

• Courts generally consider whether the conduct complained of had the effect of
rendering a continued employment relationship intolerable.

• Is proof of dishonest conduct sufficient to show a breach of the relationship of

trust?

• SCA has held that employer must lead evidence to this effect.
 4 Absenteeism

• Employee has a common law (implied) duty to enter and remain in service.

• Absenteeism must be distinguished from desertion – desertion does not constitute

misconduct. It implies that the employee has no intention to return to work =
automatic termination of the employment relationship.

• Absence without leave is a form of misconduct – employee must be given an

opportunity to explain his or her absence.

• Failing a reasonable explanation – dismissal will be justified.

• Important to distinguish wilful absence from absence caused by events beyond the
control of the employee.

• For example, arrest, detention or jail sentence – however, should be treated as

incapacity and not misconduct – dismissal may still be justifiable.
 2 Alcohol and drug abuse

• Alcoholism and drug abuse should be dealt with as a form of incapacity.

• But alcohol abuse and intoxication in the workplace, where the employee in
question is not an alcoholic, should be treated as misconduct.

3 Insubordination

• Insubordination is the refusal of an employee to obey reasonable instructions.

• Employee is a subordinate of the employer – duty to follow reasonable instructions.

• Gross insubordination justifies dismissal.

• Elements of gross insubordination – employer gives lawful and reasonable

instruction (which may take the form of a warning) – followed by a serious refusal
or failure to obey or carry out the instruction.
 5 Abusive language

• Abusive language used by an employee – whether directed at the employer, a

fellow employee or client – can also justify dismissal.

• Workplace culture will be relevant to ascertain whether certain language is

acceptable.

• But the CCMA and the courts have not been tolerant of abusive language based on
or referring to race, sex, gender, religion and national origin.

• Abusive language can also be part of insubordination.

• It can also amount to harassment – which can also justify a dismissal.

 6 Harassment

• Harassment is also a form of unfair discrimination – serious and repeated

harassment justifies dismissal.

• Harassment = unwarranted conduct that is persistent or serious and that demeans

or humiliates and that creates a hostile environment or force victim into certain
conduct.
7 Assault and intimidation

• Physical assault on the employer, a fellow employee, client or customer justifies

dismissal – even on first offence.

• Need to consider self-defence and provocation.

• Intimidation can vary from, subtle to direct threats, e.g. threatening to kill another
employee, client or employer – can justify dismissal.
 8 Off-duty conduct

• Generally, off-duty conduct is not the concern of the employer.

• However, where the conduct was either an extension of a workplace issue or had
the potential to bring the employer into disrepute – a dismissal can be justifiable.

• Must be a link between the conduct and the employer’s business – impact of the
conduct on the employer’s business must be serious.

9 Wilful damage to property and negligence

• Wilful damage to property is a form of misconduct – justifies dismissal.

• Whether dismissal will be justified in case of negligence more complex - will

depend on the nature of the task, impact of the damages (loss or potential loss
suffered) the seniority of the employee – all factors to be considered.
PROCEDURAL FAIRNESS FOR MISCONDUCT DISMISSALS

• In addition to substantive fairness – LRA provides that a dismissal must be

procedurally fair.

• LRA does not provide direction on the content of procedural fairness – guidelines
are provided by the Code of Good Practice: Dismissal item 4.

• The Code provides that the employer should:

 conduct an investigation whether there are grounds for a dismissal;

 should notify the employee of the allegations using plain language;
 allow the employee the opportunity to state a case;
 allow the employee reasonable time to prepare a response;
 entitle the employee the assistance of a trade union representative or fellow
employee;
 communicate the decision taken after the enquiry, preferably in writing.
The disciplinary investigation/enquiry

• The employer should conduct an investigation before dismissing an employee –

does not need to be a formal process.

• The accused employee is generally not entitled to legal representation.

• Where there is a formal disciplinary code in place – terms of the code must be
observed.

• Courts have confirmed that in certain circumstances it would not be unfair for the
employer to continue with a disciplinary process in the absence of the employee.

• When the employee unreasonably refuses to participate or attend the hearing or

where the employee is absent without leave – employer is entitled to proceed with
the disciplinary enquiry, provided that the employee has been notified of the
enquiry.
Disciplinary action against a trade union representative, office-bearer or official

• Discipline against a trade union representative or an employee who is a trade union

office-bearer or official – should not be instituted without first informing and
consulting the trade union.

• The reason is because the dismissal of a trade union representative may be

perceived as an attack on the trade union.

• The objective of consultation is to advise and communicate with the trade union
that the disciplinary action is not motivated by the desire to victimise.

• It is also to deal with the impact of the disciplinary action on the ongoing
relationship between the employer and the union.

• The procedure adopted to dismiss a trade union representative must be perceived

as fair and objective.
The dismissed employee’s right to appeal

• The dismissed employee should be given the reason for the dismissal.

• The employee should also be reminded of any rights to appeal should the
employer’s disciplinary code provide for this.

• After the dismissal, the employee may refer the matter to the CCMA or the relevant
bargaining council.

• The Code does not specifically recommend any right of appeal within the structures
of the employer.

• But, where there is provision for an internal appeal in the employer’s disciplinary
code – employee is entitled to use this process – unless the employee waives the
right.
REMEDIES

• The available remedies for an unfairly dismissed employee are reinstatement, re-
employment or compensation.

• Reinstatement and re-employment are the primary remedies, except where:

 unfairness was only of a procedural nature;
 employee does not wish to return to the employer;
 circumstances surrounding the dismissal make continued employment
intolerable; or
 reinstatement or re-employment is not reasonably practical.

• Compensation – must be just and equitable – may be not be more than 12 months’
remuneration.