Dismissal for misconduct is probably the most frequently referred to matter at the CCMA – however, few people have a clear understanding of what misconduct really is.
It may seem like a simple concept, but some key principles need to be understood. If misconduct have to be described in the workplace, it would state that it is an act or omission committed by an individual that is in contravention of a clear workplace rule or standard.
Misconduct consists of 3 main elements: the act itself; the workplace rule; and fault.
- The Act itself
This element includes some kind of physical action (or lack of an action when referring to an omission). It is important that the act or omission can be identified and attributed to an individual and most of the time few problems are encountered with this element.
- The Workplace Rule
When talking about this element, the most important question is whether there is a clear workplace rule or standard that exists which has been violated. Schedule 8 of the Labour Relations Act (LRA) states that when dismissing an employee, there needs to be a clear workplace rule or standard that the employee knew about or should have reasonable knowledge about. In a few instances, whether fault (mainly intent) can be attributed to an employee’s act depends on whether that employee had knowledge of the fact that what they were doing went against the company rules. However, some rules may be so well understood or known that they need not be communicated to employees in order for them to be punishable, e.g. assault.
The last element of consideration, is fault. Fault, as a legal concept, is poorly understood by most people due to its complexity. We find two forms of fault: intent and negligence.
A person acts intentionally if his will is directed at a result which he causes while having knowledge of the wrongfulness of such an act. A practical example of this would be if the employee did in fact know of a workplace rule against theft, but proceeded to steal company property anyway.
Negligence means that a reasonable person would have acted differently to the way the employee acted. The test employed to establish if an employee had acted negligently is to assess if a reasonable man in the employee’s position would have foreseen a certain result occurring and then, would that reasonable person have taken steps to try to avoid that result.
This is an extremely simplified overview of misconduct and further elements may need consideration, but normally if you can satisfy these requirements, you can say that the employee has committed misconduct and may be punished for it.
ABOUT THE AUTHOR
Jonathan Renou has been with SEESA since 2015 year and is currently employed as a SEESA Labour Legal Advisor.