When chairing disciplinary hearings, the sanction of a summary dismissal is always given as a last resort. The sanction is also dependent on the severity of the misconduct and if the employee has previous written warnings for a similar offence. Thus, a summary dismissal is only permissible where the employee is in material breach of his/her contract. In the case of Kammies v Golden Arrows Bus Services, Pty Ltd (1994), the court ruled that an employer may dismiss an employee for an offence which carries a penalty of a final written warning whereupon that offence was particularly serious. However, the general rule is that penalties in the workplace must be applied progressively and thus the lighter sanction should be applied in the case of a first offence.
Furthermore, mitigating factors must also be taken into account such as length of service before making a final decision to dismiss an employee. In the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) the constitutional court took an extremely tolerant approach. In this specific case, a security guard failed to search employees who left a high security area at the mine. The Constitutional Court agreed with the decision that was meted out by the Commissioner, which stated that dismissal was too harsh in view of the employee’s length of service and his clean disciplinary record. The dismissal was declared unfair and the security guard was given a final written warning and subsequently reinstated. The approach in this case was, however, too lenient which was later rectified in the case of Theewaterskloof Municipality v SALGBC. In this case, the court held that the main question was whether the employee’s conduct was irreconcilable with the continuation of the employment relationship. This case took a far more reasonable approach.
As illustrated above, there are a numerous factors that have to be considered before dismissing an employee. It is apparent that where an employee is guilty of dishonesty, the outcome of the hearing will be a summary dismissal if the employee is found guilty of the charge. However, where an employee is found guilty of an offence relating to time-keeping, unauthorised absence, gross negligence and insubordination, the outcome of the hearing will generally not result in a dismissal. This is however dependant on the severity of the case.
ABOUT THE AUTHOR
Lasanthan Pillay obtained his Bachelor of Law Degree from the University of KwaZulu-Natal in 2013. He is an admitted Attorney of the High Court of South Africa. He completed his articles at Strauss Daly Attorneys in Umhlanga in Durban. During his time at Strauss Daly Attorneys, he specialised in banking litigation matters at the High Court of South Africa and the Durban Magistrate Court.