Even where it has been proved beyond any doubt at arbitration that an employee has committed an extremely serious offence, the employer will not have discharged its legal duty to prove that the employee deserved to be dismissed.

Schedule 8 indicates that an employee may be dismissed for gross offences such as assault, wilfully endangering safety, gross dishonesty or gross insubordination.

The employer’s own disciplinary code may have other offences that merit dismissal such as, for example, gross sexual harassment, racist behaviour, gross dereliction of duty or bringing the name of the company into disrepute.

However, Schedule 8 also says that, despite the fact that such misconduct might merit dismissal, the employer’s right to dismiss the employee is subject to the condition that each case should be judged on its own merit.

This means that while it might be acceptable to label an offence as gross misconduct, dismissal will only be merited if the specific circumstances of each individual case, looked at as a whole, make dismissal apt.

The person deciding whether a guilty employee deserves to be dismissed must take into account all circumstances of the case as well as circumstances such as the employee’s personal circumstances, the employee’s disciplinary record and length of service.

It is important to note that Schedule 8 does not say that the employee’s personal circumstances, disciplinary history or length of service must be taken into account in the employee’s favour to mitigate the penalty.

The code merely says that these factors must be taken into account; period. The wording of the Code does not stop the employer from taking such circumstances into account as aggravating circumstances.

Indeed, it is accepted practice, that, should the employee’s record show previous, unexpired warnings for a similar offence, the employer can use these as circumstances to strengthen the penalty.

However, it appears that, although the Code does not specify it, arbitrators and Labour Court judges expect an employer to view an employee’s long service as a mitigating circumstance potentially strong enough to reduce an expected dismissal penalty to a lesser corrective measure.

For example, in the case of Sedumo and another vs Rustenburg Platinum Mines Ltd (2008 2 BLLR 24) a key issue raised in the Constitutional Court was that of how a Chairperson should deal with mitigating circumstances.

Chairpersons often have difficulty deciding how much weight to give mitigating circumstances and thus how to satisfy the CCMA and the courts. There are a number of factors contributing to this problem:

1. Chairpersons who are not trained or not trained enough

2. Chairpersons who lack experience

3. Chairpersons who lack knowledge concerning the content and spirit of the law

4. the fact that the CCMA does not have one standard policy towards the weight to be given to mitigating circumstances. As different Commissioners have different views, it is difficult for Chairpersons to know what the standards are.

In the above mentioned case what Sidumo did was, at worst, dishonesty and, at best, gross dereliction of duty.

He claimed not to have been trained in the specific task he was required to do.

However, he had 15 years of experience as a security guard and the question arises as to what training such an experienced guard needs in order to know that he must search every person exiting the Precious Metals gate.

The question also arises as to why his 15 years of service should significantly mitigate his penalty.

That is, was he at the company for 15 years out of loyalty for the employer or he was unable to get another job? Why should his 15 years of service only be used in his favour? Why could it not be used against him due to the fact that his years of long service should have taught him that he is required to search employees who he has been instructed to search and should have taught him the importance of this job and the seriousness of his failure to do so.

The employer has a dilemma in such circumstances. I.e. on the one hand, the employer knows that an employee behaving in such a grossly derelict manner deserves to be dismissed and that the employer cannot possibly continue to trust the employee. On the other hand, the employer knows that the CCMA, backed up by the Constitutional Court expects the employer to give significant mitigating weight to 15 years service.

The employer thus needs to be able to give sufficient weight to length of service but, at the same time, to be able to identify reasons why the mitigating circumstances are outweighed. The danger lies in the lack of understanding of how to balance these two responsibilities.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za

First published by SA Labour Guide