In terms of the Code of Good Practice, dismissal is one of the requirements of a fair dismissal for misconduct in that the sanction imposed must be ‘appropriate’. Whilst the Code does not carry the weight of law, the Labour Relations Act 55 of 1996 (LRA), which regulates unfair dismissals, explicitly states that the Code must be taken into account. With regard to the ‘appropriateness of sanction’, this requirement does not stand-alone but is supplemented by other.
The right to fair labour practices has now been entrenched in the 1996 Constitution and the following Acts promulgated to give effect to it; the LRA, the Basic Conditions of Employment Act 75 of 1997 and the Employment Equity Act 55 of 1998. All dismissals are measured against the benchmark of fairness as articulated in the LRA. It is of importance to note that both the Code and the recently enacted CCMA guidelines supplement the provisions of the LRA in regulating dismissals.
The relevant guidelines in the Code state that:
“Any person who is determining whether a dismissal for misconduct is unfair should consider –
- whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
- 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.’
In addition, an important principle of the Code is that it endorses the concept of corrective or progressive discipline and as such, when dealing with the question of appropriate sanction, efforts should be made to correct and rectify behaviour through a system of graduated disciplinary measures (i.e. counseling and warnings).
The enquiry into the general fairness of the dismissal requires a value judgment on the part of the commissioner, which in essence incorporates a range of responses to the appropriateness of the imposition of a specific sanction.
It seems that the crux of the matter lies in the interpretation and development of the test for the ‘appropriateness’ of sanction; bearing in mind that while it is an objective enquiry, it may yield contrasting subjective responses.
Further, what becomes a decisive factor is the employer’s claim that the relationship of trust has indeed been irreparably harmed. There are instances in which an employee may commit a serious act of dishonesty yet the employer may still feel it is capable of trusting that employee. The employer‘s appraisal of the situation must be taken into consideration. Therefore the presence of dishonesty in itself is not enough to suggest the relationship of trust has completely disintegrated.
Whether a dismissal will be regarded as fair will depend on whether the misconduct alone has rendered the continued employment relationship intolerable or cumulatively with past transgressions it has done so.
At the end of the day, determining an appropriate sanction for misconduct is about common sense and fairness, after considering all the relevant information. It is about a rational value judgment.
ABOUT THE AUTHOR
Devendran Naidoo obtained his Law degree in 2014 from the University of South Africa. He thereafter registered for his master’s degree in Labour law at the University of Kwa-Zulu Natal and completed a dissertation on ‘Dismissals and Fair Sanctions’. Further, he holds a qualification in Forensic Investigation & Criminal Justice from the University of Kwa-Zulu Natal.