Where the employee is found guilty in any hearing mitigating circumstances can influence the penalty or corrective action decision. The concept of ‘mitigating circumstances’ refers to evidence brought by the employee that may persuade the presiding officer to hand down a lighter penalty than would normally be imposed. For example, the accused might say that he/she has never previously broken any rule in the hope of a more lenient penalty.

A number of important questions arise relating to mitigating circumstances in the labour law context. These include:

• Legally speaking, is there a place for mitigating circumstances in a disciplinary hearing?
• What submissions qualify as mitigating circumstances?
• How must the presiding officer take account of mitigating circumstances?
• What obligations does the employer have for facilitating the introduction of evidence in mitigation?

LEGALLY SPEAKING, IS THERE A PLACE FOR MITIGATING CIRCUMSTANCES IN A DISCIPLINARY HEARING?

The Labour Relations Act (LRA) does not specifically allude to mitigating circumstances. However, item 3(5) of Schedule 8 of the LRA says that, “When deciding whether or not to impose the 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.”

This makes it clear that circumstances other than the gravity of the offence itself must be taken into account before dismissing an employee. These additional circumstances stated in Schedule 8 are commonly known as mitigating circumstances. An employee who punched a colleague after being severely provoked should not be treated the same as an employee who assaulted a colleague without provocation.

WHAT SUBMISSIONS QUALIFY AS MITIGATING CIRCUMSTANCES?

Mitigating circumstances can include the size of the family the employee is supporting, the pressures exerted on the employee at the time of the misconduct, the employee’s work record, length of service, provocation, a show of genuine remorse and other personal and work related circumstances.

HOW MUST THE PRESIDING OFFICER TAKE ACCOUNT OF MITIGATING CIRCUMSTANCES?

The law does not quantify the extent to which the different types of mitigating circumstances must be taken into account. Neither does the law require the employer to accept the truth of the mitigating circumstances stated by the employee. However, the presiding officer must, if he/she fails to give a mitigating circumstance substantial weight, explain his/her reasoning for this. It is insufficient to ignore the mitigating circumstances or to reject them out of hand.

WHAT OBLIGATIONS DOES THE EMPLOYER HAVE FOR FACILITATING THE INTRODUCTION OF EVIDENCE IN MITIGATION?

Logic would dictate that bringing mitigating circumstances is entirely the employee’s duty. However, the employer has the duty of giving the employee the opportunity to argue mitigating circumstances. This the employer must do by:

• Explaining that the verdict is guilty and that the employee has the right to bring mitigating circumstances
• Explaining what mitigating circumstances are and what their purpose is
• Giving the employee time to consider and explain these circumstances.

In the case of Afrox Ltd vs National Bargaining Council for the Chemical Industry & others (2006, CLL Vol. 15 No. 12) The employer failed to call two witnesses to the disciplinary hearing. The Labour Court found this to be unfair because these witnesses could have provided mitigating circumstances for the employee. This is a startling finding because there was nothing stopping the employee from calling these witnesses and there is no legal principle requiring an employer to call witnesses who can assist the accused employee. This case stresses the point that the courts consider mitigating circumstances to be important.

Employers have no hesitation in arguing aggravating circumstances. These are circumstances that add to the severity of the offence. They need to understand that their right to argue aggravating circumstances is balanced by the employees right to be heard on mitigating circumstances. But weighing up aggravating and mitigating circumstances fairly is a most difficult task and should be carried out by an experienced presiding officer who understands the subtleties of labour law.

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Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za