When an employee is found guilty during the disciplinary hearing proceedings, the evidence presented in aggravation of a sanction should be taken into due consideration before deciding the appropriate sanction.
When a chairperson makes a guilty finding on an employee, the next step in the proceedings would be to listen to the aggravating and mitigating circumstances before the chairperson decides what the appropriate sanction would be. The initiator acting on behalf of the company must present evidence or witnesses regarding what impact the actions of the accused employee had on the company. An example of this would be when an employee is charged for unauthorised absence from work. In this instance, it is considered a minor offence; therefore the impact that the employee’s absence had on the business must be proven by the initiator. This is equally important to offences classified as serious offences in an employer’s disciplinary code.
Another factor to consider includes any previous warnings that the employee has on his disciplinary record. The previous warnings issued to the accused employee and submitted as evidence in aggravation must still be active at the time of the misconduct. The warning has to be relevant to the misconduct the employee is being disciplined for.
The last factor to consider is the trust relationship between the employer and the employee. This is a broad spectrum as the employee’s position influences this and the charges against the employee. Merely saying you do not trust an employee is not reasonable grounds for a harsher sanction. The reason for the distrust has to be proven by the initiator or a witness. An employee working as a cleaner will not have the same responsibility weighting in the company as an employee working as a security guard for the same company. For example, this would mean that a security guard sleeping while on duty is more likely to distrust the cleaner also found sleeping while on duty.
As per the court case of Woolworths (Pty) Ltd v Mabija & Others (2016) 37 ILJ 1380 (LAC), the court found that some serious misconduct would prove that the trust relationship has been broken down, and it would not be necessary to prove that the breakdown of the relationship. In the same light, the court also said that “it is always better if such evidence is led by people who are in a position to testify to such breakdown.”
For the dismissal to be substantively fair, the seriousness of the offence and the aggravating circumstances have to exceed the mitigating circumstances.
Contact your SEESA Labour Legal Advisor to assist your business with any Disciplinary Hearing related queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the Author:
Wikus Swanepoel started his career at SEESA in 2021 and is currently a Legal Advisor for Labour and BEE at SEESA’s Klerksdorp branch. He obtained his BA degree in Law from the North-West University.
Resources:
Woolworths (Pty) Ltd v Mabija & Others (2016) 37 ILJ 1380 (LAC)