Please note that this pertains to South African Labour and Best Practice requirements.
So here we have George, who has now attended his disciplinary hearing for a) stealing stock and b) hitting Simon. Now what?
Well, generally speaking it would not be the right thing to do, to dismiss an employee for a first offence. Obviously there are always exceptions, depending on the severity of the offence!
Some of the examples of serious misconduct are, but not limited to, and it should be noted that each case has to be judged on its own merits;
• gross dishonesty
• willful damage to the property of the employer
• willful endangering of the safety of others
• physical assault on the employer
• physical assault on a fellow employee
• physical assault on a client and/or customer
• gross insubordination.
If the case does not meet the requirements of section 188, which states
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair
(2) Any person considering whether or not the reason for dismissal is a
fair reason or whether or not the dismissal was effected in accordance
with a fair procedure must take into account any relevant code of good
practice issued in terms of this Act.51
then the dismissal will not be fair.
When the chairperson was deliberating on whether or not to impose the penalty of dismissal on George, not only should he take into consideration the gravity of the misconduct but he also has to take into account other factors such as, but not limited to:
• length of service
• previous disciplinary record
• personal circumstances
• the nature of the job
• the circumstances of the infringement itself.
The chairperson also has to take into account what the penalty was for any previous case, in which the circumstances were the same. You see all employees have to be treated in the same manner – so if there was a previous case such as this, the penalty has to be the same as this.
Next week we will have a look at what a “Fair Procedure” would be.