Misconduct

LARM 615 class of 2023

 Discussion
Points

• Definition and policies

• Requirements in cases of dismissal for misconduct

• Disciplinary procedure for misconduct

• Case law
Definition and policies
What is misconduct?

The failure by an employee to comply to the their

obligations or to observe the standard of conduct
expected by an employer.
Effective misconduct policies should:

• Clearly define what constitutes the misconduct

• Establish procedures for reporting misconduct

• Provide a fair and impartial process for investigations

• Specify the consequences

• Communicate the policies to all the employees

 Key elements to effectively handle
misconduct in the workplace:

Definition of misconduct

Reporting procedures

Investigation procedures

Disciplinary action

Training and awareness

Confidentiality

Review and updating

Repercussions of violating misconduct policies

• Verbal warning
• Written warning
• Final written warning
• Suspension
• Termination of employment
• Legal action
 Duration of warnings

• Verbal warning: valid for 3 months

• Written warning: valid for 6 months
• Final written warning: valid for 12 months

The time that warnings are considered valid for is not set in stone and should b
agreed upon through discussions between the employer and employees or unio
involved in the process.
Requirements in cases of dismissal for
misconduct
 Existence of rule

To dismiss an employee for breaking a rule, the employer must prove that the rule was valid, legal,
and reasonable.

The employer can refer to the company's disciplinary code to demonstrate that the employee
contravened a workplace rule.

Employees can challenge the rule's legality or rationality and argue that they were not subject to it.

A rule is considered unreasonable if it is irrelevant to the workplace or job, requires immoral actions,
or exceeds the employee's abilities or status.
 Contravention of rule

When determining if an employee has violated a rule, their conduct must be assessed to determine if it
genuinely breaks the rule.

The evidence must be analyzed to determine the specifics of the employee's behavior. If the employee's
behavior falls within the rule's scope, the rule must be applied to the facts.

Example:
If a workplace rule requires employees to undergo searches while leaving the employer's property, an
employee who refuses to participate in the search may be penalized by a manager. However, it must be
proven that the employee willfully and irrationally refused to allow for the search despite being aware of
the requirement to give their consent.
 The Onus Proof

The LRA (Labour Relations Act) places the burden of proof on the employee to show that their
termination qualifies as a dismissal, while the employer is responsible for proving that the dismissal
was fair.

In case of doubt regarding the presence of a dismissal, the employee must provide evidence to support
their claim, and the employer must demonstrate that the dismissal was both procedurally and
substantively fair once it has been established as a dismissal.
 Standard of proof

The test determines the likelihood of one version of a conflicting story being true over the other, and a
decision is made based on the probability.

The court has reduced the burden of proof on employers, who now only need to show that they had
reasonable grounds to suspect an offense was committed, rather than proving it on a balance of
probability.
 Knowledge of the rule

To discipline employees for breaking regulations, it is generally accepted that they must have known, or
should have known, that the rules existed.

Employers must provide a comprehensive code of conduct that outlines the workplace standards, as well
as the consequences for noncompliance, to ensure that employees are aware of the rules.
 Consistency

It is essential for companies to implement their workplace rules consistently, as employees must be aware
of these rules to be disciplined for breaking them.

Inconsistent implementation of rules can cause confusion and raise questions about the existence of a rule.
 The employee’s disciplinary record

An employee's disciplinary record may be considered when deciding whether to dismiss them for a specific
offense.

If the employee receives a final warning for the same offense, they may be viewed as irredeemable, and
committing a similar offense while on the warning can justify their dismissal.

Disciplinary codes outline how long warnings will remain valid, and once the period of the offense has
passed, the warning expires, and the employee's record is considered clean.
 The employee’s length of service

The longer the employee has been with the company the more seriously the employer should take
mitigating factors into account.
 Mitigating and aggravating factors

After an employee has been found guilty of an offense, mitigating factors should be considered, which is a
separate inquiry.

Various factors, such as disciplinary records, length of service, remorse, and the circumstances of the offense,
may be relevant when considering mitigation.

The key factor is whether these factors indicate that the employee will not repeat the offense.

Employees have a choice between denying the offense or confessing and apologizing in the hope that their
remorse will be taken into account during mitigation.
 Appropriate sanction

According to the Code of Good Practice:

Dismissal, a fair dismissal for misconduct must be an appropriate remedy. Presiding officers in internal
disciplinary inquiries must use their discretion when imposing a sanction, with due regard for fairness.

The employer's decision to dismiss is generally considered reasonable, but it can be challenged if the
tribunal can demonstrate that it was so unreasonable that no reasonable person would have made the same
decision in the circumstances.
DISCPLINARY PROCEDURE FOR
MISCONDUCT
 Code of good practices

•Procedure is in accordance with the principles of good practice in Schedule 8 of the labour relations act no. 66
of 1995

•Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment

•Substantively fair – a valid reason for the termination

•Procedurally fair – the dismissal must be affected in a procedurally fair manner

•Employer must make sure that the investigation is thorough of the alleged misconduct – should be fair,
objective and confidential
 Code of good practices

• Progressive discipline – the employer should endeavor to correct employees’ behavior

through:

Verbal warnings

Written warnings

Final warnings

Dismissal should be considered as a last resort

How to use the Procedure
Minimum requirements, which any disciplinary procedure should contain:

• A basic structure for developing their own procedure

• If applied as it currently stands, should ensure that discipline is fairly and effectively administered

• The Code of Good Practice requires employers to adopt disciplinary rules that establish the standard of

conduct required of employees

• The Code recognizes that the content of disciplinary rules will vary
Service of notice referred to the procedure

• Written notices must be served to the employee

• Employee should be asked to sign

• However, I employee refuses, it should be recorded by the

employer on the notice – time date and place
 Disciplinary records

• It's important to keep records of employees disciplinary

• Disciplinary procedure requires copies of any written

warning
Representation at disciplinary enquiry

• Procedure provides that an employee that is registered with a

trade union should represent an employee.

• Employer is required to consult union prior to issuing any

disciplinary inquiry (para 7.4)
Disciplinary Enquiry

The chair of the disciplinary inquiry must be:

• A person who is able to make an independent decision
based on the facts presented at the inquiry.

• A person who has not been involved with investigating the

employee concerned or who is going to prosecute the
charges against the employee in the disciplinary hearing.
Disciplinary Enquiry

The chair of the disciplinary hearing must consider whether:

⚬ the employee being charged broke a rule of conduct in the workplace
⚬ the rule was valid or reasonable;
⚬ the employee knew about the rule or should have known about the rule;
and
⚬ the employer has been consistent in applying the rule.

• the chairperson must consider the appropriate sanction to impose

• The chairperson must consider whether dismissal is the appropriate remedy
• Each case must be judged on its own particular facts
Penalty of dismissal

The Code of Good Practice recommends that when deciding whether or not to
impose the penalty of dismissal, the employer should consider:

⚬ the gravity of the misconduct;

⚬ 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.

• employer applies the penalty of dismissal consistently

Appeals

• The procedure does not contain an appeal procedure

• An appeal procedure is a formal written procedure for resolution of problems

or concerns raised by applicants which cannot be resolved in an informal

manner to the appellants satisfaction.

Direct referral to arbitration and appeals

The decision not to include an appeal procedure is also based on the view that the

parties may prefer to include in their disciplinary procedure provision that if the

outcome of the disciplinary enquiry is challenged, the dispute is referred to private

arbitration for a final and binding award.

Appeals

• Employee who is dismissed shall be entitled to appeal to the Appropriate

managerial structure

• Appeals must be in writing within 5 days

• Appropriate managerial structure, determines if it is necessary to hear further

evidence/ submissions

• Appropriate managerial structure, delegates its powers in 10.3 to a sub-committee

or representative
Appeals (CONTINUE)

• If dismissal is confirmed, the date of dismissal shall be the date on which the employee
is advised of the appeal hearing
• Paragraph 9.5, drafted must take into account the 30 days , referral to the CCMA
• SECTION 190 LRA, “date of dismissal” is earlier of:
⚬ Contract of employment is terminated or,
⚬ Employee left service of the employer
 Referral of a dispute

• An employee who is dismissed may refer a dispute to the CCMA or a bargaining

council with jurisdiction within 30 days of the date of the employee's dismissal.

• An employer should advise the employee of this right upon dismissing the employee.

• It is the practice of the CCMA not to accept any referrals from parties until all internal

procedures have been exhausted.

Case law
THANGO v NSIBANYONI and others

Summary
￭ Mr Dumisani Thango was dismissed for gross misconduct which was found to be substantively and
procedurally fair by the Commissioner.
￭ He was placed on suspension in order for the company to investigate these allegations against him.
￭ He was charged with gross insubordination, gross insolence and gross misconduct.
￭ Mr Gaba shot and killed two of his colleagues and escaped with the help of one other staff member.
￭ Families felt that Mr Claassen’s report was a duplicate of the police report and asked Mr Thango that a further
investigation be conducted.
￭ Mr Thango instructed Mr Mpathla to conduct the investigation.
￭ Mr Van Eeden instructed Mr Thango do discontinue the investigation but Mr Thango did not.
￭ Mr Mpathla testified at the disciplinary enquiry but sadly died before the arbitration.
￭ Mr Mosothoane testified that Mr Mpathla feared for his life and was threatened by Mr Van Eeden.
￭ Applicant contended the commissioner’s findings on bases that she misdirected herself, failed to attach
sufficient weight to the witnesses’ evidence, relied upon hearsay evidence, and disregarded crucial evidence.
THANGO v NSIBANYONI and others

Ruling:
￭ The Commissioner found that the applicant's dismissal was substantively fair.

￭ The Commissioner found that the:

￭ Disciplinary proceedings had indeed continued in the absence of the applicant's representative

￭ Only one witness, Mr Matsie, testified while the applicant's representative was absent

￭ Mr Matsie's testimony was identical in the arbitration proceedings and the disciplinary enquiry. Therefore, she

reasoned, no harm was severe

￭ That being the case, she concluded that the dismissal was procedurally fair as well.
THANGO v NSIBANYONI and others

Group opinion
The ruling is correct. Thango had more than one offence.

Gross insubordination
• He deliberately refused to execute
a lawful instruction.

Gross insolence
• He refused to disclose the intention and reasons for sending an investigator from mainline passenger service
to KZN after being instructed not to do so.

Gross neglegence
• He refused to disclose the intention and reasons for sending an investigator from mainline passenger service
to KZN after being instructed not to do so.
MOLOANTOA v ESKOM and others

Summary
￭ Moloantoa has been an employee of Eskom for a period 5 years.

￭ She was obligated to travel from Medupi Power Plant located in Lephalale to Midrand to attend training course on the

16 February 2015.

￭ The employee travelled with fellow colleague and paid R400 for transport fee.

￭ On her return she claimed for reimbursement of the travel costs & it was approved.

￭ The kilometres were calculated, and she was given the R2 584.80

￭ 2 years later whistle blower informed the employers regarding the dishonestly of Moloantoa for claiming

reimbursement.

￭ Eskom began to investigate the matter and Moloantoa was found guilty.

￭ NUMSA, trade union of the employee admitted that its employee was grossly dishonest and is facing the serious fraud
THANGO v NSIBANYONI and others

Ruling:
￭ Dismissal was substantively and procedurally fair
THANGO v NSIBANYONI and others

Reasons for ruling:

￭ Approved disciplinary procedure

￭ Forensic investigator was appointed

￭ Moloantoa was informed well in advance about the allegations and

hearing

￭ Moloantoa did not come clean

￭ Procedure was negotiated with trade unions

 THANGO v NSIBANYONI and others

Group opinion
The group agrees with the ruling.
The charges were due to gross misconduct.

Gross misconduct means:

⚬ It permits dismissal of the employee immediately without notice or pay.

⚬ It depends on the nature of misconduct.

• Since she started working for the company in 2011 the employer should have considered the employee's

length of service and disciplinary record.

• However in this regard the procedure carried out is fair

• Disciplinary hearing took place.

• The applicant was also allowed a chance to respond to the allegations.

 Thank you

Please feel free to ask questions or share your opinion