Item 3(4) of sch 8 (Code of Good Practice: Dismissal) of the Labour Relations Act 66 of 1995 provides that ‘generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, 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 employee, client, or customer; and
• gross insubordination.

Schedule 8(5) provides further that ‘when deciding whether or not to impose a penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself’.

In the event wherein a charged employee is found guilty and/or pleads guilty to the charges of misconduct against them, the chairperson must afford both the employer and the employee an opportunity to make submissions on aggravating and mitigating factors before a final decision on an appropriate sanction can be made.

Factors, which should be considered in mitigating and aggravating circumstances, include among others –

• the employee’s personal circumstances;
• the employee’s disciplinary record and length of service;
• whether the misconduct is serious and makes a continued employment relationship intolerable;
• the employee’s attitude and remorse;
• pre-meditation and circumstances of the infringement;
• the nature and impact of the misconduct;
• the harm or potential harm caused by the employee’s conduct;
• the presence or absence of dishonesty in the employee’s conduct;
• other applicable factors.

‘In his book entitled Dismissal [Cape Town: Juta 2014] at page 211, Professor John Grogan remarked as follows regarding mitigating factors:

“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 factors into account merely because they evoke sympathy. The test is whether, taken individually or cumulatively, they serve to indicate that the employee will not repeat the offence”’ (Magate Phala ‘The significant value of mitigating circumstances in misconduct cases involving gross dishonesty’ www.labourguide.co.za, 9-9-2021).

The following factors as laid down per Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) are, inter alia, pertinent and should be equally considered (and weighed against each other) in determining an appropriate sanction for the misconduct –

• the nature and seriousness of the charge the employee found guilty of;
• whether progressive discipline can be utilised to transform the incorrect conduct;
• the harm or potential harm caused by the employee’s conduct.
• the effect of dismissal on the employee;
• whether additional training and instruction may result in the employee not repeating the misconduct;
• the employee’s disciplinary record and length of service;
• the presence or absence of dishonesty in the employee’s conduct;
• whether the employee admitted the misconduct or disputed it and, if the employee disputed it, whether the employee behaved dishonestly or inappropriately in doing so;
• whether the misconduct is serious and makes a continued employment relationship intolerable; however,
• this list is not exhaustive.

In Department of Labour v General Public Service Sectoral Bargaining Council and Others  (2010) 31 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction or rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of their conduct.

In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1051 (LAC) at para 25, the court held that: ‘Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken’.

In National Union of Mineworkers and Another v CCMA and Others (LC) (unreported case no JR2016/2009, 20-3-2013) (Prinsloo AJ) the court held that ‘acknowledgement of wrongdoing is the necessary first step in correcting behaviour’. By failure to acknowledge wrongdoing, the employee had rendered himself not to qualify as a candidate of a corrective discipline.

In Miyambo v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 2031 (LAC) at para 13, it was held that: ‘It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust.’

‘In Council for Scientific and Industrial Research v Fijen [1996 (2) SA 1 (A)], the Supreme Court of Appeal confirmed trust in any employer-employee relationship to be a cardinal aspect and even though not always spelled out in a written contract, the term/element of the relationship is implied’ (Tiekie Mocke ‘Trust’ http://misa-link.mozello.com, accessed 9-9-2021).

I recommended that employers should appoint chairpersons who are well-trained to preside over disciplinary inquiries. The chairpersons should have requisite skills and experience on how to evaluate the facts of each case objectively, and have the ability to apply their minds independently and impartially. They should also have good listening and communication skills, be punctual, ethical and possess report writing skills and have ability to interpret policies.

Magate Phala Dip Labour Law (University of Limpopo) PG Dip Labour Law (UJ) is a director at Magate Phala and Associates in Centurion.

This article was first published in De Rebus in 2021 (Oct) DR 11.