The South African Labour author John Grogan states that employees have an obligation to provide the employer with their labour, to obey reasonable instructions, to act in good faith and perform their duties. The function of discipline in the employment context is to ensure that the individual’s employees contribute effectively and efficiently to the goals of the company.
Progressive discipline and dismissal
In terms of the Codes of Good Practice dismissal must be seen as the last resort. A sanction of dismissal must be appropriate for the particular contravention of a rule or standard. The principle that the penalty must fit the offence requires an employer to consider alternative sanctions before taking the decision to dismiss (item 3(2) of the Codes of Good Practice).
Progressive discipline and warnings’ validity period
In some instances the employer made all attempts to change and correct the employee’s behaviour through progressive discipline, but the employee commits the same or similar offence just after the final written warning has lapsed or commits acts of misconduct at convenient intervals falling outside the period of applicability of the warnings. This leaves the employer frustrated, as progressive discipline now needs to be re-applied according to the employer’s code of conduct.
The question to be asked is if the employer can rely on previous lapsed warnings to justify the employee’s dismissal?
In the Labour Appeal Court (LAC) case of National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2013) the employee was dismissed on three counts of misconduct. The employee had previously been issued with a written warning relating to similar misconduct.
The employee referred a dispute to the CCMA, where the Commissioner found the dismissal to be substantively unfair. One of the issues that arose was whether and to what extent a court could rely on warnings that have expired in determining the substantive fairness of a dismissal.
The LAC found that the final written warning had in fact not lapsed and even if it had lapsed, it should still have been taken into account in considering the fairness of the dismissal. It was held that employees who repeatedly commit misconduct are acting in contravention of their obligations in terms of their employment contract and thus an employer is entitled to take into account all previous transgressions when considering whether or not to dismiss an employee for an offence. It was found that the fact that the warning had lapsed did not relieve the Commissioner from taking this into account, particularly where the misconduct for which the employee received the final written warning was of such a similar nature and occurred approximately 5 months before. It was held by the LAC that the Commissioner had reached a decision that no reasonable decision-maker could have made.
The Court further quoted the case of Gcwensha v CCMA and Others (2006) with approval and found that:
“An employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/or misconduct. To do otherwise would be to subject an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings. An employee’s duties include the careful execution of his or her work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances.”.
The appeal was dismissed and the order of the Labour Court was upheld to the extent that it found that the dismissal was substantively unfair. It was, however, found that the dismissal was not procedurally unfair.
ABOUT THE AUTHOR
Hendrik van Niekerk obtained his LLB degree from the University of Pretoria in 2008 and was admitted as an Attorney of the High Court in 2010. He joined SEESA Labour at our Pretoria office in 2010 as a legal advisor and was promoted to a SEESA Labour Senior Legal Advisor in 2012.