Before an employee can be dismissed for contravening a rule, it must be established that the rule itself was valid; ie lawful and reasonable. Save my name, email, and website in this browser for the next time I comment. This means that the employer’s decision to dismiss must stand unless the tribunal is satisfied (and can demonstrate) that the employer’s decision to dismiss is so unreasonable that no reasonable person would have taken such a decision in the circumstances. An employee’s disciplinary record may be taken into account when considering whether the employee should be dismissed for a particular offence. Once the dismissal is proved, the employer is required to prove that the dismissal was both substantively and procedurally fair. Whether a lesser sanction would have served the purpose: A theme expressed in many judgments and awards, echoed in the Code of Good Practice: Dismissal, is that dismissal is the ‘ultimate sanction’ in the employment context. It is widely accepted that, the longer the period of service with the employer, the more seriously the employer should consider mitigating factors. Where a code does so, it is generally accepted that when that period expires, a warning lapses and the employee is considered to have a ‘clean’ disciplinary record. Generally speaking, it is unfair in itself to treat people who have committed similar misconduct differently. If the misconduct is minor, a warning is issued to the employee. Employees may also argue that they were not bound by the rule because it was unlawful or unreasonable. The courts may say that the ‘trust’ upon which the employment relationship was founded was destroyed. A disciplinary hearing in some form or another, is still a requirement in terms of South African labour law. Employers are permitted to introduce rules to cope with changing demands and circumstances. Resignation, in writing, with immediate effect, is no longer legal and binding, Latest Covid-19 regulations as from 01 October 2020.  082-433-8714 It is generally accepted that employees may be disciplined for contravening rules only if they knew, or ought to have known, of the existence of the rules. This test is whether, when there is conflicting evidence on a particular point, one version is more probable than the other. The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. However, it is generally accepted that these codes are merely guidelines. A variety of considerations may be relevant when considering a plea in mitigation. The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct. A degree of blameworthiness is therefore ascribed to the employee. Nor does the law permit an employee to shelter behind the instruction or consent of a superior if the employee knows that the instruction was unlawful, or the superior was aware that the employee’s action was wrong. JUDGMENT . Grogan, his book Dismissal, Juta 2013 on page 197 stated Within limits, employment law does not recognise the principle ‘ignorance of the law is no excuse’. It should therefore not be imposed if a lesser penalty would serve the purpose. If a rule is unlawful, either because it compels an employee to perform an unlawful act or because the rule itself is prohibited by statute, the employee is free to disregard it. On 26 May 2018, the Labour Court handed down its Judgment in: Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC), which dealt with the dismissal of an employee for misconduct in circumstances where the employer was aware of the said employee’s manic depression state, and which state apparently led to his commission of the alleged misconduct. This code should list offences and appropriate measures that may be taken by the employer in the event of breach. Publication of rules is a general principle of fairness and good labour relations. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired. However, when they do this, they must ensure that the new rules are brought to the attention of employees. Refusal by employees to subject themselves to searches may be treated as misconduct. T Cell: 082 433 8714 Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice.. (4) 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. A wise employer will therefore ensure that the rules of the workplace are set out in a comprehensive code of conduct, which brings the rules and the sanctions that can be expected for non-compliance to the attention of employees. Home » BLOG » Labour law articles » Dismissal for misconduct, SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity. (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is –.     8001,  021-423-3959 The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. Or they may say that the employment relationship has been rendered ‘intolerable’. If it is more serious and dismissal is warranted, then a disciplinary enquiry [also known as a disciplinary hearing] is convened. An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning. According to South Africa’s labour laws, an employer cannot dismiss you without a fair disciplinary hearing. However, it is also unfair because inconsistent application of rules creates confusion and possible doubt about whether a rule in fact exists. If misconduct of an employee is so serious that it undermines the mutual trust and confidence between the employee and their employer and merits instant dismissal, this is known as gross misconduct. 1A1 Notice of Disciplinary Enquiry 1B1 Detailed Guidelines: ... Labourwise is an online advisory service for employers in South Africa. This is to be found in schedule 8 of the LRA. E-mail: bernard@capelabour.co.za This includes wilful damage to property, physical assault, gross dishonesty, fraud etc. Delivered: 31 August 2016 . THE NATURE OF DISCIPLINE 2.1 There must be a rule or standard 2.2 The rule must be valid 2.3 The rule must be consistently applied 2.4 The employee must be aware of the rule 2.5 Corrective approach 3.  bernard@capelabour.co.za The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures. Misconduct can take on many forms although the legal basis for dismissal is the same in most cases. Johan Botes, Partner, Julia Olley and Kirsty Gibson, from the Employment and Compensation Practice Group in Johannesburg, discuss the importance of effectively managing a virtual workforce and the process for dismissing an employee during the nationwide lockdown in South Africa. Heard: 4 February 2016 . Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. The effect of this provision is that, if the ‘existence’ of the dismissal is in dispute, the employee bears the burden of placing facts before the court which warrant the conclusion that the termination of the employment relationship constituted a dismissal as defined in the LRA. A rule is accepted as legitimate and valid if it is lawful and can be justified. The employer 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 two or more employees who participate in the misconduct under consideration. New Variant of Covid-19 Discovered . Website: www.capelabour.co.za, 3 De Lorentz The most common source of legal rules is the employer’s disciplinary code. Dismissal should be reserved for cases of serious misconduct or repeated offences. 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