How to end the employment relationship in a fair manner based on the employee’s conduct

In the guide on “How to manage the employment relationship in a fair manner where the employee’s behaviour requires addressing”, guidelines are provided on how to manage cases of less serious acts of misconduct and more serious acts of misconduct. In the case of more serious misconduct, it was recommended that an investigation be conducted to:

Determine whether there are grounds for taking action against the employee;
Find facts which support the allegations against the employee; and
Determine whether the facts are likely to stand up at a disciplinary hearing.

Where an investigation confirms alleged serious misconduct where dismissal could be an outcome, a disciplinary hearing should be convened. This could be a formal or informal hearing.

How to manage the employment relationship where the employee’s behaviour requires addressing (misconduct)

What does the law say about a fair dismissal?

The Labour Relations Act 66 of 1995 (LRA)

Section 188 (1) (a) and (b) of the LRA states that an employer who dismisses an employee for a reason based on the employee’s conduct, will have to prove that such a dismissal was a for a fair reason and was carried out in accordance with a fair procedure.

Simply put, in terms of the law:

There must be a fair and valid reason for dismissing an employee (this is referred to as substantive fairness); and
The employer must follow a fair procedure during this process (this is referred to as procedural fairness).

If either or both of these requirements are not met, the dismissal will be unfair.

Schedule 8 to the Labour Relations Act 66 of 1995, the Code of Good Practice: Dismissal (the Code)

In ensuring that a dismissal is fair, employers should refer to and be guided by:

The Code of good practice: Dismissal ;
Their own contract of employment or disciplinary code and procedures (if they have one); or
The procedures agreed to in a collective agreement (if there is one).

The CCMA guidelines on misconduct arbitration (CCMA guidelines)

The CCMA guidelines serve as a guide for CCMA arbitrators when they are deciding on the fairness of a dismissal disputes referred to the CCMA. They serve as a useful guide to employers embarking on disciplinary action for misconduct.

The guidelines will give guidance to employers on factors to consider when dealing with discipline in the workplace, what they can expect from arbitration proceedings, and how to prepare for arbitration.

What is a fair reason for dismissing an employee based on his/her conduct (Substantive fairness)?

Item 7 of the Code sets out factors that should be considered when determining whether or not a dismissal for misconduct is based on a fair reason. The same factors should therefore be considered by the person chairing an internal disciplinary hearing or conducting and considering the outcome of a disciplinary investigation:

Whether the employee broke a rule or standard regulating conduct in the workplace.
Whether the rule or standard was valid or reasonable.
Whether the employee was aware of or could have been reasonably expected to be aware of the rule or standard.
Whether the employer has been consistent in applying the rule or standard.
Whether dismissal is the appropriate sanction for contravention of the rule or standard.

The following enquiry should be carried out by an employer:

a) Is there a Rule?
A rule or standard is often contained in a disciplinary code, collective agreement or written policy. Where these do not exist, the existence of the rule may be proved by the testimony of a witness, from the contract of employment, legislation or universal rules that are commonly known.

Universal rules include:

Duties relating to performance, e.g. the duty to work, to keep time, and to comply with lawful and reasonable instructions.
Duties relating to good order, e.g. the duty to co-operate, to respect co-employees, not to assault or harass co-employees and not to disrupt the business.
Duties relating to trust, e.g. the duty not to be dishonest or to undermine the employer’s business or reputation.

b) Was the employee aware of the rule?
In the absence of a disciplinary code, contract of employment provisions or policy which is known to the employee, the employer will need to provide evidence of past practice of which the employee was aware or show that the employee could reasonably be expected to know that his/her conduct was unacceptable. Where there is no written disciplinary code, contract or policy, it is necessary to establish whether the employee could reasonably be expected to have known of the rule or standard. It may also be that the rule or standard is so well known or established that it is not necessary for an employer to communicate it, for example in the case of theft.

If an employee has been provided with a copy of the disciplinary code, or has access to the code via computer or on notice boards, for example, it will usually be found that the employee should reasonably have been aware of the rules contained in the code, regardless of whether s/he had actual knowledge of the rule.

c) Did the employee contravene the rule?
Unless the employee admits to having contravened the rule, evidence must be led about how the rule was broken. The duty lies with the employer to prove, that the employee probably broke the rule; this applies both in disciplinary hearings and at arbitration.

d) Is the rule or standard a valid or reasonable rule or standard?
While it is the employer’s responsibility to determine the rules and standards in the workplace, it is an arbitrator’s role to determine whether the rule was valid and reasonable. Employers should therefore ensure that the rules which they seek to enforce are valid and reasonable.

Validity
A rule or standard must be lawful and not contrary to public policy. Examples of unlawful instructions as provided in the CCMA Guidelines include:

An instruction to perform work in contravention of a safety standard.
An instruction to perform work that falls outside the scope of duties that the employee may reasonably be expected to perform.
An instruction to seduce clients.
An instruction not to give evidence against an employer.
Reasonableness
In determining whether a rule is reasonable, an employer may compare the rule with the norms in the sector which reflect the approach taken by other employers. Employers must establish whether the standard or rule is reasonable and what sanction is appropriate if the rule is broken.

e) Was dismissal an appropriate sanction?
It is generally not appropriate to dismiss an employee for a first offence unless the offence is so serious that it makes a continued working relationship intolerable.

The CCMA Guidelines point out that dismissal is not a punishment, but rather a rational response by the employer to risk management in the organisation.

Three enquiries are required to determine whether dismissal is an appropriate sanction:

An enquiry into the seriousness of the contravention of the rule.
An enquiry into the consistency of the application of the rule and sanction.
An enquiry into other considerations that may justify a different sanction.

The seriousness of the contravention of the rule.

The Code promotes progressive discipline where appropriate. Serious acts of misconduct, including gross dishonesty, wilful damage to property, endangering the safety of others; gross insubordination, gross negligence, sexual harassment, assault, and racial abuse may justify the sanction of dismissal for single contraventions. This is not a closed list, and some offences may be regarded more seriously in some workplaces than in others, depending on the nature of the workplace. Less serious acts of misconduct that accumulate may also justify dismissal.

The circumstances of the contravention may aggravate for or mitigate (lessen) against a harsh sanction. Aggravating factors might include, for example, wilfulness (i.e. doing something intentionally), lack of remorse, effect of the misconduct on the employer, loss of trust, previous warnings etc. Mitigating factors could include remorse, confession, absence of damage or loss, provocation and a clean disciplinary record.

f) Has the rule been consistently applied?
It would be inconsistent for an employer to discipline one employee for breaking a rule, but to take no action against another employee who breaks the same rule. With regard to sanction, should an employer dismiss one employee but not another for breaking the same rule, the employer must justify why the employees are treated differently. If the employer is unable to do so, the difference in treatment may be unfair even if the employee is otherwise guilty of the transgression.

Factors that may lead to treating employees charged with the same offence differently may include for example, mitigating factors, aggravating factors and the employees’ disciplinary records.

The general rule is that cases that are substantially similar should be treated in the same way. If two employees commit the same offence, but one has substantial mitigating factors and the other does not, the employer may be justified in applying a different sanction in each case. For example, if two employees are found to have been fighting, but the evidence shows that the one was severely provoked and did not use a weapon, while the other provoked the fight and used a weapon, the employer may be justified in dismissing the latter, but giving the former a warning.

An employer is also required to be consistent over time. This means that if employees have not been dismissed for a particular form of misconduct in the past, it would be unfair to do so now. However, an employer can justify a change in approach (for example regarding an offence as dismissible while employees have not been dismissed for that offence in the past) provided that the employees are made aware of this change of approach in advance.

g) Other considerations that may justify a different sanction to dismissal:
Three factors might weigh in favour of not dismissing an employee:

the employee’s circumstances;
the nature of the job; and
the circumstances of the contravention.

a) Employee’s circumstances
The CCMA Guidelines state that the personal circumstances of the employee should be work-related, such as the effect of dismissal on an employee close to retirement. Further factors to consider include long service, a clean disciplinary record and a disability caused by an accident at work. It is, however, unlikely that factors such as long service and a clean record will outweigh the seriousness of the offence in cases of serious misconduct such as dishonesty.

b) Nature of the job
Here one should consider the extent to which the contravention of the rule might make the risk of continued employment intolerable. For example, an airline pilot who drinks alcohol whilst on duty would pose a greater risk for the employer than may a cleaner who does the same.

c) Circumstances of the contravention
Circumstances that may justify a different sanction include: remorse, provocation, coercion, use of racist or insulting language, and the absence of dishonesty. This is not a closed list.

The Constitutional Court has included the following factors as being relevant when determining the fairness of the sanction:

The general vulnerability of employees to unfair decision making.
The importance of security of employment.
The importance of the rule that was broken.
The reasons for establishing the rule including its reasonableness.
The harm caused by the employee's conduct.
The impact it had on the employment relationship.
The effect of setting a precedent.
The reason why the employer imposed the sanction of dismissal.
The basis of the employee's challenge to the dismissal.
Whether additional training and instruction may result in the employee not repeating the misconduct.
The effect of the dismissal on the employee.
The employee's long service record.

Alternative sanctions to dismissal

Alternative sanctions to dismissal could be:

suspension without payment for a limited period; or
preventative action, including demotion.

Suspension as a sanction

Suspension without pay may also be used as a less harsh alternative to dismissal, and this too will have a deterrent effect, both on the employee concerned and on other employees. It requires the agreement of the employee. If the employee does not agree to the suspension without pay the employer would be entitled to proceed with the dismissal, provided that the offence is one that is serious enough to warrant dismissal.

Preventative action

Preventative action may be taken where an offending employee is retained, for example by moving the employee to an area where the offence is unlikely to be repeated, or restructuring the job to ensure stricter control mechanisms. This could involve a demotion. If the employee does not agree to the demotion the employer would be entitled to proceed with the dismissal, provided that the offence is one that is serious enough to warrant dismissal.

What is a fair procedure to follow before dismissing an employee based on his/her conduct (procedural fairness)?

Item 4 of the Code sets out the requirements for a fair procedure.

According to the CCMA guidelines, if there is no workplace disciplinary procedure, the Code must be applied.

An informal enquiry

The CCMA Guidelines indicate that item 4 of the Code contemplates an investigation into the misconduct which includes an inquiry which need not be formal. The Code contemplates a flexible and less onerous procedure to follow.

Avoiding ‘over-proceduralism’

Disciplinary codes agreed to between trade unions and employers or developed by employers need not go further than the requirements set out in the Code.

There has, however, been a trend for employers and trade unions to agree on very formal disciplinary procedures at the workplace.

This has led to the coining of the term “over-proceduralism” which essentially suggests that a disciplinary procedure leans more to the criminal justice model of procedural fairness instead of the standard expected in terms of the Code.

For information on a formal disciplinary hearing see:

Stages in a formal disciplinary hearing

Chairperson’s checklist for a formal disciplinary hearing

In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644, Judge van Niekerk of the Labour Court stated that “the LRA thus recognises not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements.”

In terms of the Avril Elizabeth judgment, read with the CCMA Guidelines, for a dismissal for misconduct to be procedurally fair, the following is required:

a) The employer must conduct an investigation into the alleged misconduct to determine if there are grounds for dismissal. The investigation need not be formal. The disciplinary hearing could also constitute such an investigation.

Suggested steps to follow when conducting an investigation into misconduct

How to formulate allegations

b) The employee must be made aware of the allegations against him/her in a language and form that s/he can reasonably understand. It is preferable to set out the allegations in writing, and then have these explained to the employee in his/her own language, especially if she/he is illiterate or does not understand the language in which the allegation(s) are written. The objective of this requirement is to ensure that the employee is reasonably able to state a case in response to the allegations.

Notice of a disciplinary hearing

Notice of a disciplinary hearing

c) The employee should be allowed a reasonable time to prepare a response to the allegations. In very complex matters, more time is required to prepare. Giving less than a day to prepare will, in most cases, not be reasonable. The nature of the opportunity to respond may vary. In some instances, the employee can be given an opportunity to prepare a written response, which may be found to be sufficient to decide whether there are any grounds to continue with the hearing. If the matter does proceed to a disciplinary hearing s/he may be given an opportunity to make oral representations.

d) The employee should be allowed to be assisted by a fellow-employee or trade union representative (shop steward). Assistance by a trade union official only applies if a trade union has been granted organisational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee. Where the hearing is conducted in a language which the employee may not understand well, the employee should be advised that s/he may bring a fellow employee to assist as an interpreter.

Representation at a disciplinary hearing

e) The employee should be given an opportunity to state a case in response to the allegations. This can be done in writing or at a meeting and there is no requirement to hold a formal hearing. An important factor in assessing the fairness of the process is whether the employee was given a proper opportunity to state a case. This may mean being given the opportunity to call and question witnesses in some cases. In others it may mean no more than giving an explanation. If an employer holds a formal hearing, then it must be conducted in a manner that allows an employee to state a case.

f) The employer should communicate the decision that has been taken, preferably in writing. The employee should also be furnished with reasons for the decision. If the sanction is dismissal, the employee must be informed of his/her right to refer a dispute to a bargaining council or the CCMA (and the relevant time periods in which to do so). There is no automatic right of internal appeal, but if the employer’s policy provides for an appeal process this must be followed.

The Code permits an employer to dispense with procedures provided for in the Code in exceptional circumstances for example where an employer acts to protect lives and property.

Termination of services - Conduct

Termination of services - Conduct

The following checklist serves as a summarised guide to procedural fairness:

Has the employer conducted an investigation, even if informal, into the alleged misconduct to determine if there are grounds for dismissal?
Was the employee made aware of the allegations against him/her in an understandable manner?
Was the employee given a reasonable time in which to prepare a response?
Was the employee given the right to interpretation by a person conversant in the applicable languages?
Was the employee advised of the right to be assisted by a fellow employee or union representative if applicable?
Was the employee allowed an opportunity to state a case?
If the sanction was dismissal, was the employee given an outcome and made aware of the right to refer a dispute to the CCMA / bargaining council?

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