Schedule 8 Item 7 of the Code of Good Practice: Dismissal (Labour Relations Act) states that to determine whether a dismissal is fair, the following needs to be considered:
- If 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 that rule or standard was valid or reasonable;
- the employee was aware or could reasonably be expected to have been aware of the rule or standard;
- the rule or standard has been consistently applied by the employer and;
- the dismissal was appropriate to sanction for the contravention of the rule or standard.
The employer proving the misconduct.
The burden of proof is on the employer to proof, on a balance of probabilities, that the employee actually committed the alleged misconduct. The employer’s disciplinary code or the employee’s contract of employment can be referred to determining whether there is an existing rule in the workplace. If the rule is not in writing, certain misconduct causes the employment relationship to break down irreparably even if the rule is omitted in the disciplinary code or contract. In these circumstances, the employee knew or should have known that the misconduct could result in a dismissal.
Is there an existing rule in the workplace?
The employer must prove that there is an existing rule in the workplace which the employee contravened. The rule should be in writing but if the employee disputes the existence of the rule in writing, the employer must prove that the employee was aware or should have been reasonably expected to be aware of the rule (i.e. an obvious rule such as theft).
In Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30 (15 June 2016) the Labour Appeal Court decided that the dismissal of the employee was unfair due to the employer failing to prove the existence of a clear workplace rule, as the disciplinary code did not make provision for that. Furthermore, no evidence could be submitted that the rule was communicated to the employees. The LAC stated that it’s not necessary for all rules to be in writing (such as theft) but a heavier burden will be on the employer to prove a non-written rule.
Is the employee aware of the rule?
No employee can be punished for contravening a rule if that employee was unaware of the rule. Therefore, the employer must prove that the employee was aware of the rule or the employee could reasonably be expected to be aware of the rule.
Is the rule valid and reasonable?
Reasonable rule: This is a rule that does not breach any law or leads to an unreasonable burden on the employee.
Valid rule: Can be regarded as a rule that is not in contravention of any legislation and/or collective agreement, the rule does not require an employee to act unlawfully and the rule is stipulated contractually on the side of the employer.
Is the rule consistently applied?
This requirement entails that “what goes for one, goes for all” which simply means that if the employer imposes a certain sanction on an employee for certain misconduct committed, the employer should ensure to impose that same sanction (depending on the merits of the case where each individual case is unique) on other employees as well as for the same misconduct committed.
In the case of Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others (2010), 31 ILJ 452 (LC) the Labour Court found that an employer is not necessarily bound by sanctions issued in the past. The court further found that grounds like disciplinary history and the circumstances of the case contribute to the fact that the employer may differentiate between employees. Shortly, an employee cannot escape dismissal due to the employer issuing a lighter sanction to a co-worker in the past.
Appropriate sanction.
The final requirement for a fair dismissal is that the sanction imposed must be appropriate and must fit the offence which also requires the employer to consider alternative sanctions before deciding on a dismissal.
In the case of Sidumo v Rustenburg Platinum Mines Ltd & Others 12 BLLR 1097 (CC) the Constitutional Court decided that the commissioner’s decision was one that any reasonable commissioner might have made. The commissioner ordered reinstatement of the employee and final warning after the latter was dismissed for not searching employees who left a high-security area in a mine and he also permitted some employees to undersign a register whereby they confirm they have been searched which is not the case.
The commissioner stated that the employee’s misconduct was of serious nature but due to his length of service as well as his clean disciplinary record, the sanction of dismissal was too harsh.
Finally, to determine whether a dismissal is an appropriate punishment, the employer must prove that the trust relationship has broken down irreparably. In Edcon Ltd v Pillemer NO the employee was lying about an incident in her company car. Her dismissal was regarded as unfair due to the fact that two managers of the employee stated in letters that they can still trust her. Therefore, if an employer testifies that the trust relationship between employer and employee has broken down irreparably, he/she must provide evidence for this.
ABOUT THE AUTHOR
Frikkie van Tonder obtained a Bachelor of Commerce (B.Comm Law) degree in 2009 from the University of the Free State. He was registered as a candidate attorney in 2010 with Vermaak & Dennis Attorneys in Bloemfontein. In 2011, he obtained a bachelor of laws (LLB) degree from the University of the Free State and completed his articles of clerkship in 2012. In April 2012, the author was admitted as an Attorney in die Free State High Court, Bloemfontein. After admission, he practised as an attorney for two and a half years before joining SEESA Bloemfontein in June 2015 as a legal advisor in the labour department, where he specializes in labour law.