DISMISSAL FOR MISCONDUCT

Study Unit 5.3

STUDY OUTCOMES
• Indicate the necessity of discipline and the
acceptance of a disciplinary code
• Explain substantive fairness with reference to the
Code of Good Pra c tic e, ite m 7
• Describe procedural requirements that needs to
be complied with
• Identify the grounds for dismissal for misconduct
and apply substantive and procedural principles
to them (Grogan)
• How is onus of proof applied here?
• Discuss sanctions that the employer can apply
INTRODUCTORY REMARKS
Discipline is essential to keep order in the
workplace, maintain productivity and efficiency
and to sustain healthy employment and collegial
relationships. No business will exist for long if
there is constant friction among the workers and
if the employer cannot trust the employees.

It is for this reason that the employer has the

right to enforce disciplinary rules in his
workplace and to take steps against an employee
who breaches these rules, in other words
commits m is c onduc t.

The main objective of this study section is to

discuss when dismissal for misconduct will be
substantively and procedurally fair.
 Dis m is s a l for Mis c onduc t

1. Misconduct first of three (3) grounds for fair dismissal – s 188(1) of the LRA
2. In case of misconduct employee is directly responsible for his dismissal
3. Why a reason for dismissal? Because the misconduct damages the
employer-employee relationship!
4. The seriousness of the misconduct will determine the sanction
 SOURCES OF LAW FOR
MISCONDUCT
• ILO Te rm ina tion of Em ploym e nt Conve ntion (1982) – Article 4 (valid reasons), 7 (fair
procedure) and 11 (reasonable period of notice or compensation)
• Cons titution of the Re public of South Afric a (1996) – sections 23 and 33
• La bour Re la tions Ac t (1995)
 s e c tion 188(1)(a ) = substantive fairness (valid reasons – capable of being justified under
item 7 of Code)
 s e c tion 188(1)(b) = procedural fairness (fair procedure)
• Code of Good Practice: Dismissal (Schedule 8 to LRA) – item 3 (disciplinary measures), 4 (fair
procedure) and 7 (guidelines in cases of dismissals for misconduct)
 Dis c iplina ry Code

Ite m3(1) of the Code of Good Practice: Dismissal

1.Every employer should implement such code
2.Create certainty among employees regarding expected conduct
3.Announcement of specialised rules of conduct NB – ex. the maintenance of
specific hygiene in the food industry
4. General rules of conduct not necessarily communicated – ex. no theft or
assault
5. How will substantive fairness be determined?
6. Read Ite m 3 with Ite m 7
 Is dismissal always best the option?

Ite m
3(2)-(5) of the Code of Good Practice: Dismissal
1.Progressive discipline
2.Attempt 'rehabilitation'
3.Informal and formal warnings, deprivation of discretionary benefits, demotion and
suspension
4. Repeated 'minor' misconduct receives warnings (but only to a point – then dismissal)
5. Dismissal therefore not appropriate for first offences – EXCEPT:
• In serious cases that permanently damages the employment relationship, ex. dishonesty, serious damage to the employer,
assault, gross negligence, willful endangerment
SUBSTANTIVE
FAIRNESS
 SUBSTANTIVE FAIRNESS
(a fa ir/va lid re a s on)
Employee commits misconduct when he contravenes a rule of conduct:

Ite m 7 of the Code - Guide line s in ca s e s of dis m is s a l for m is c onduc t

Any person who is determining whether a dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the
workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and;
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (1)

Ite m 7(a ) – Rule or standard regulating conduct contravened?

• TEST = ON THE BALANCE OF PROBABILITIES – onus on employer to adduce evidence
• Mere suspicion will not suffice, no matter how strong. Mbanjwa v Shoprite Checkers [2013]
ZALAC 29
• Collective/ team/ mass misconduct – problematic, you cannot identify the culprit.
However, as an exception an inference can be drawn.
 Chauke v Lee Service Centre (1998) 19 ILJ (LAC)
 SACCAWU v Cashbuild [1996] 4 BLLR 457 (IC)
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (2)

Ite m 7(b)(i) – Whe the r rule or s ta nda rd wa s va lid or re a s ona ble

• Enquiry on whether workplace rules are capable of justification.

• Generally, these will be in accordance with the employer’s needs to promote
their business interest/s. Provided that it does not contravene collective
agreements or legislation.
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (3)

Ite m 7(b)(ii) – Em ploye e wa s a wa re or re a s ona bly e xpe c te d to be a wa re of rule or s ta nda rd.

• Actual knowledge and constructive knowledge = reasonably expected to know.

• No defence – if a rule was not communicated but one which an employee ought to have known.
• YES - An employee occupies senior position or has a record of long service with the employer.

• Herholdt v Nedbank Ltd (2012) 33 ILJ 1789 (LAC) – financial planner since 1994, failed to
disclosed conflict of interest (beneficiary under client’s will) – dismissed.
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (4)

Ite m 7(b)(iii) – Wa s the rule or s ta nda rd c ons is te ntly a pplie d?

• To ensure fairness - same rule should apply to all employees of the employer

• And ite m 3(6) of the Code : ‘the employer should apply the penalty of dismissal
consistently … as in the past between 2 or more employees who participate in the
misconduct under consideration’.

• Applying the rule/standard inconsistently would be justified in cases where an employer can
show that the cases differ. ONUS on e m ploye r to a dduc e e vide nc e
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (5)

Ite m 7(b)(iv) – Whe the r the dis m is s a l wa s a n a ppropriate s a nc tion

Ite m 3(4) of the Code - dismissal is not appropriate for first time
offences unless serious
Ite m 3(5) of the Code - encourages employers to take into account the
employee’s circumstances (aggravating and mitigating factors)
 ITEM 7 of the Code –
guide line s on a s s e s s ing s ubs ta ntive fa irne s s (6)

• Seriousness of the offence

• Difficulty - different employers adopt different measures
• Approach = balance interests of employer (business interest) and employee (their circumstances)
• Overlap between aggravating and mitigating factors
• Ite m 2(1)of the Code – whether or not a dismissal is fair or is for a fair reason is determined by
the facts of the case, and appropriateness of dismissal as a penalty.
 Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC)
 Palaborwa Mining Co Ltd v Cheetham (2008) 29 ILJ 306 (LAC)
PARTICULAR OFFENCES:
CONDUCT JUSTIFYING DIMISSAL

1) Absenteeism and time-related offences 8) Dishonesty

2) Abusive language 9) Insubordination
3) Alcohol and drug abuse 10) Intimidation
4) Assault 11) Negligence
5) Conflict of interest 12) Off-duty conduct
6) Damage to property 13) Sexual harassment
7) Desertion
 DISHONESTY
1. Gros s dis hone s ty
• Theft, fraud etc
• Dishonesty can lead to summary dismissal or dismissal at first instance
• Anglo American Farms –Effect that the dishonesty has on the employment
relationship – trust violated
• Investigate properly – prove on balance of probabilities
• Theft viewed in a very serious light – the degree of theft is irrelevant
(Mayimbo v CCMA)
 CASE – dishonesty (1)
So, an item of even an insignificant value, no matter how small can justify a dismissal.

Anglo Am e ric a n Fa rm s v Kom jwa yo (1992) 13 ILJ 573 (LAC)

The e m ploye e (a wa ite r) took a c a n of Fa nta . He wa s dis m is s e d. It wa s a rgue d tha t the va lue of the ite m wa s s m a ll
a nd the re fore the a c t wa s trivia l.
"…the relationship between such an employer and such an employee is of such a nature that, for it to be healthy, the
employer, must, of necessity, be confident that he can trust the employee not to steal his stock-in-trade. If that confidence is
destroyed or substantially diminished by the realization that the employee is a thief, the continuation of their relationship
can be expected to become intolerable, at least for the employer. Thenceforth he will, as it were, have to be continually
looking over his shoulder to see whether his employee is being honest."
"I regard the correct test to apply in these circumstances to be whether or not respondent's actions had the effect of
rendering the continuation of the relationship of employer and employee intolerable.” (the Principle – law)
Als o s e e - Me tc a s h Tra ding v Fobb
 CASE – dishonesty (2)

So, a n ite m of e ve n a n ins ignifica nt va lue, no m a tte r how s m a ll ca n

jus tify a dis m is s a l.

Shoprite Che c ke rs v CCMA (2008) 29 ILJ 2581 (LAC) and Miya m bo v

CCMA (2010) 31 ILJ 2031 (LAC)
The LAC made it clear that regardless of the value of the goods, dishonesty
breaks down the relationship of trust and confidence and justifies a dismissal
‘on account of the employer’s operational requirements.
 CASE – dishonesty (3)
Fa ls e cla im s or dis clos ure s by e m ploye e s jus tifie s a dis m is s a l.

De pa rtm e nt of Hom e Affa irs v Ndlovu [2014] 9 BLLR 851 (LAC)

Ndlovu applied for a post as an area manager and submitted his application and CV to that effect.
It was later discovered that he did not have a Bachelors Degree in Technology Marketing at the
time of his appointment (July 2007). He was later charged with several acts of misconduct and
subsequently dismissed.

LAC – Ndlovu failed to disclose his CV that he was ‘currently completing’ his Bachelors Degree
(para10). He created a false impression that he was in possession of such a qualification, and the
employer had proved gross misconduct on the part of the respondent (para 11). The dishonesty in
the CV underpins the substantive fairness of the respondent’s dismissal (para 14)
 CASES – dishonesty (4)

The e m ploye e (with a long e m ploym e nt re c ord) wa s in a c a r a c c ide nt with the c om pa ny ve hicle. In
orde r to hide this fa c t, he a ba ndone d the ca r in a de s e rte d pa rking lot a nd cla im e d the c a r to be
hija c ke d.

"Although a long period of service of an employee will usually be a mitigating factor where such employee
is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of
such a serious nature that no length of service can save an employee who is guilty of them from dismissal.
To my mind one such clear act of misconduct is gross dishonesty."
[Toyota South Afric a Motors (Pty) Ltd v Ra de be & Othe rs [2000] 3 BLLR 243 (LAC)]
 CASE – dishonesty (5)
An e m ploye r , who runs a m e ta l bus ine s s , ha d the polic y tha t e m ploye e s m a y ta ke s om e of the
s c ra p produc t hom e, jus t a s long a s the y follow the c orre c t proc e dure to obta in pe rm is s ion. An
e m ploye e dis re ga rde d this polic y a nd took s om e of the s c ra p produc t without pe rm is s ion to do s o.

"The presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like
long service and a clean record of discipline are likely to have minimal impact on the sanction to be
imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored
once dishonesty has been established in particular in a case where the employee shows no remorse. The
reason for this is that there is a high premium placed on honesty because conduct that involves
corruption by the employees damages the trust relationship which underpins the essence of the
employment relationship." [Hule tt Alum inium v Ba rga ining Counc il for the Me ta l Indus try]
 CONFLICT OF INTERESTS

2. Conflic t of inte re s ts

• Employee must advance employer’s interest

• If own interests are in conflict – effects employment - and trust
relationship
• Ex. Employee in competing business
 WILFUL DAMAGE TO PROPERTY

3. Willful da m a ge to e m plopye rs prope rty

• Should be willful and serious for dismissal

• Common negligence does not warrant immediate dismissal
• Gross negligence - employee really didn’t care whether he damaged the business’s
property – summary dismissal may be fair
 ASSAULT or FIGHTING
4. As s a ult or fighting

• Physical assault not required

• Proper proof of threat is required
• Assault outside business premises also valid – When?
• Assault on business premises but after hours?
• All factors should be considered
- Personal circumstances,
- provocation, self defense
• Conduct must be immediate after provocation; excuse of self defense must be proportional to
the threat (not more than what is necessary to ward off the threat)
 CASE – assault/ fighting (1)

Em ploye e, doing a n ins pe c tion of a clie nt's private a irpla ne, wa s m e t with a ggre s s ive a nd a bus ive c onduc t from the clie nt whe re the
clie nt ye lle d at him a nd m a de ra c is t c om m e nts a ga ins t him . The c lie nt wa gge d his finge r in front of his fa c e a nd s tood s o c los e to him
while ye lling at him that the clie nt's s pittle fle w into his fa c e. The e m ploye e pus he d the clie nt away from him with his flat ha nd on the
clie nt's c he s t. Em ploye e wa s dis m is s e d for a s s a ulting/m a nha ndling the clie nt

Snyman says: "A person acts in private defence, and her act is therefore lawful, if she uses force to repel an unlawful attack which has
commenced, or is imminently threatening, upon her or somebody else's life, bodily integrity, property or other interest which deserves
to be protected, providing the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is not
more harmful than necessary to ward off the attack."
"The applicant defended himself by pushing Mr Dhlamini away from him with open hands and there is no evidence that he had harmed
or injured Mr Dhlamini in any way whatsoever. The questions whether the applicant could have warded off the attack in a 'less harmful'
way and whether his act of defence had been more harmful than necessary, consequently do not even arise."
"The fact that the applicant in casu (in this case) had acted in private defence means that he should not have been charged with
misconduct…"
[Solida rity obo Arm s trong v SA Civil Aviation Authority]
 CASES – assault/ fighting (2)

Em ploye e s la ppe d a nothe r through the fa c e on a Monda y a fte r re c e iving le wd (offe ns ive ) te le phone c a lls from him
ove r the we e ke nd. She cla im s provoc a tion a nd did not c ons ide r following the e m ploye r's grie va nc e proc e dure.
Em ploye e dis m is s e d for a s s a ult.
"…if regard is had to the fact that she had sufficient opportunity to consider how to deal with the matter before returning to
work on Monday; that she was unable to explain why she had failed to report a grievance to human resources; and that she
availed herself of the opportunity to verify the telephone number that morning, it would be apparent to any reasonable
decision maker that the defence of provocation cannot be sustained on the facts. Her conduct was deliberate in the face of
her knowledge of the disciplinary code and grievance procedure, and she cannot be said to have retaliated out of anger."
[Tride nt v MEIBC]

Em ploye e s a re involve d in a fight on a c om pa ny bus tra ns porting the m hom e . Em ploye e s a re s um m a rily dis m is s e d.
The fight did the re fore not oc c ur on the e m ploye r's pre m is e s .
"…where the criminal act impinges in some way on the employment either by affecting the reputation of the business, or the
employee during the course of his work, or where the employee has a position of special trust, criminal acts committed
outside the scope of employment may be sufficient grounds to justify dismissal.’’ [NUM v Ea s t Ra nd Gold & Ura nium ]
 INSUBORDINATION
6. Gros s ins ubordina tion

- Draw comprehensive distinction between insolence (rude and disrespectful behaviour)

and blatant insubordination – NB!
- Employee EITHER shows disrespect/cheeky OR blatantly refuses to follow the employer's
instructions
- This has to be deliberate, serious and/or persistent to justify dismissal
- One time will mostly lead to a mere warning
- Defences of the employee?
 SEXUAL HARASSMENT
7. Sexua l ha ra s s m e nt

• Persistent and unwanted sexual advances

• Various forms: Code s of Good Pra c tic e – Sexua l ha ra s s m e nt (1998 a nd 2005)
• Infringe the employee’s right to human dignity and integrity
• Objective test to determine employee’s feelings of resentment – Problematic!
• Employer must prove that the conduct amounted to sexual harassment – factors in
1995 Code should be considered
 CASE – sexual harassment

Employee hugged and kissed his female colleague against her will and sat on her lap. She asked
him to stop but he persisted. He was found guilty of sexual harassment and dismissed.

"The appellant's conduct constituted sexual harassment, both in terms of the respondent's policy document
on sexual harassment and in terms of the law developed by the Industrial Court…
…any unwanted sexual behaviour or comment which has a negative effect on the recipient constitutes sexual
harassment…
It is obviously not every act of sexual harassment which will lead to dismissal. Dismissal was, nevertheless,
the appropriate remedy in this case. The harassment was of an aggravated kind. It occurred over a period of
some four hours and the appellant showed no remorse. Instead, he fabricated a story that the complainant
had consented to his behaviour. The dismissal was substantively fair." [Re ddy v Unive rs ity of Nata l]
 ABUSIVE LANGUAGE
8. Abus ive a nd ra c is t la ngua ge

• If serious – can lead to dismissal

 In presence of other employees
 No justification for the utterance etc.
• Mitigating factor if the victim reacts violently against the perpetrator - provocation
• Racism viewed in a serious light
• Abusive words spread by an employee on social media which could harm reputations – dismissal [Se dic k v Kris ra y]
• Accusations of racism?
• Relevant circumstances considered – mitigating factors

Le ba wo Platinum Mine s v Hill (1998) 19 ILJ 1112 (LAC) – The LAC upheld a dismissal of an employee who called another
a ‘bobejaan’ on the basis that the abuse was racist.
 INTOXICATION
9. Intoxic a tion on duty

• Employee dismissed if shows up for work drunk or high (of uses on the premises
• Does not have the ability to perform his work – employer should prove such
• Can be either misconduct or incapacity
• Alcoholism: incapacity that should be treated
• Tanker Services – employees not able to perform their duties at all or safely do so
• Depends on the nature of the job
• Intoxication not lead to dismissal?
 CASE – intoxication (1)
Afte r a n e m ploye e wa s involve d in a n a lte rc ation with a clie nt outs ide the work pre m is e s , the e m ploye r did a
bre atha lyze r te s t. It s howe d s igns of a lc ohol in his blood s tre a m . He wa s howe ve r not unde r the influe nc e a nd
c ould pe rform his dutie s without proble m s . The e m ploye r howe ve r dis m is s e d him . The e m ploye r ha d a ze ro-
tole ra nc e policy prohibiting e m ploye e s from be ing unde r the influe nc e.

"In concluding that although there was prima facie evidence that the employee had alcohol on his breath, this was not sufficient to
justify the conclusion that he was under the influence of alcohol, the arbitrator referred to and applied the principle accepted by the
Labour Appeal Court that the ability of the employee to perform the tasks expected of him is relevant. The arbitrator therefore
concluded: 'I …accept that the change of colour to green on the breathalyzer is a strong indicator of alcohol presence in the
employee's breath and body. However, our courts have determined that a breathalyzer test on its own is not conclusive. The courts
have further elaborated that the real test is whether the competence to perform has been impaired…'
On this basis even if an employee was proven to have been under the influence of alcohol, whether or not his dismissal is justified and
fair would in each instance depend on the circumstances.
The arbitrator clearly applied his mind to the totality of evidence before him and made a reasonable decision that the applicant had
failed to discharge the onus of proving the fairness of the dismissal.’’ [Tos ca La bs v CCMA] Also see - SA Bre we rie s v CCMA.
 CASE – intoxication (2)
An employee, working at a parcel delivery company as general worker that uploads parcels on trucks, was at a party the previous evening
and drank so much that his alcohol levels were still high during a breathalyzer test the next morning. There was however no indication that
he was under the influence, and he performed his work well. The employer has a zero-tolerance policy regarding being under the influence at
work and subsequently dismissed the employee.

"The arbitrator drew a distinction between different types of job function. That is in accordance with the legal principles outlined in our case law.
And despite the applicant's legitimate concerns about safety, the functions of a general worker loading goods simply cannot be equated to that
of the applicant's drivers in applying its 'zero-tolerance' policy with regard to being under the influence of alcohol at the workplace.
In the case before me, the employee was not performing 'skilled, technically complex and highly responsible tasks'. He was loading tyres onto
trucks…The arbitrator in this case appreciated this distinction and pointed out that a 'zero-tolerance approach' could not be applied without
more to a clerk in the same way as a driver or a pilot.
He [the arbitrator] took into account that progressive discipline in this case may well have had the desired outcome of correcting the employee's
unprecedented misconduct. His conclusion that dismissal was too harsh a sanction under the circumstances is not one that no reasonable
arbitrator could have come to.’’ [Taxi-Truc ks Pa rc e l Expre s s v Nationa l Ba rga ining Counc il for the Roa d Fre ight Indus try]
 UNAUTHORISED POSSESSION OF
COMPANY PROPERTY

10. Una uthoris e d us e or pos s e s s ion of c om pa ny prope rty

• Company's property may only be used for work-related purposes

• If there exists a prohibition on the use for private purposes, it may justify dismissal
 NEGLIGENCE

11. Ne glige nc e

• Failure to exercise degree of care - expected of reasonable person

• Damage or injury had not necessarily resulted, possibility would suffice
• Single negligent act does not justify dismissal
• Gross negligence might
 LATENESS
12. Tim e -re la te d offe nc e s
• Duty to perform services – failure is an offence
• Factors considered at absenteeism
 Reasons for absence
 Employee’s service record
 Employer’s treatment of such cases in the past
• Employee should give valid reason for absenteeism
• For dismissal to be fair – absence must be for unreasonable period and serious impact
on business
• Viewed in serious light if employee cannot provide valid reasons
 ABSENTEEISM

13. Colle c tive a bs e nte e is m

• Stay-aways in protest of something

• Can be done under control of trade union – valid 'protest action’ (prote c te d)
• But if unprote c te d 'protest action' (unprotected stay-away) it will amount to an
offence
• Dismissal fair
PROCEDURAL
FAIRNESS
PROCEDURAL FAIRNESS
Introduc tion

1. Employee entitled to such procedure – regardless of the employee’s

guilt
2. Prevent arbitrary spur-of-the-moment dismissals
3. Code of Good Practice: Dismissal sets out the procedure
4. Ite m 4 of the Code of Good Pra c tic e : Dis m is s a l
 Proc e dura l Fa irne s s (2)

Fa ir Proc e dure : Ite m 4 – Code of Good Practice (Dismissals for Misconduct)

1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not
need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the
employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the
allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade
union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and
preferably furnish the employee with written notification of that decision.
2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be
instituted without first informing and consulting the trade union.
3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the
matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a
collective agreement.
4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer
may dispense with pre-dismissal procedures.

SEE NEXT SLIDE

 Proc e dura l Fa irne s s (3)

1. Inve s tiga tion

• Inquiry before the decision to dismiss employee

• Is there a valid case against the employee?
• Interrogation of employees concerned and sometimes the culprit himself
• Lie-detector tests
• Entrapment
• Telephone lines tapped
- Keep legislation in mind
 Proc e dura l Fa irne s s (4)

2. Fa ir he a ring: 10 re quire m e nts

• Proper notice
• Employee aware of charges
• Hearing precede decision
• Hearing not unreasonably delayed
• Employee present at hearing
• Employee permitted representation
• Employee may call witnesses
• Presiding officer should be impartial
• Decision with Reasons
 Proc e dura l Fa irne s s (5)

3. Possibility of appeal?

4. When does the employer not have to follow the prescribed procedure?
Next Le c ture

Starting with Study Unit 5.4

Preparation: See the STUDY GUIDE for relevant reading