A common refrain from employers is that dismissal is difficult, as our legislation, and CCMA (and Bargaining Council) Commissioners, count against employers in unfair dismissal disputes.  The fact is that dismissal is entirely appropriate, and therefore fair, as long as it is affected for a fair reason, and following a fair procedure in which there is evidence that the employee is probably guilty.  This of course presupposes that there has been a repetition of offences, or one single act of misconduct which is so gross in nature that, on its own, it justifies dismissal.

We see in our practice, on a daily basis, that adherence to these principles invariably results in dismissals being upheld at the CCMA and Bargaining Councils.

Part of the problem is that employers often don’t know what they don’t know.

Discipline needs to be applied consistently, meaning that (1) an employer can’t suddenly discipline or dismiss an employee for misconduct they have overlooked in the past, (2) all employees, in respect of whom an employer has sufficient proof of misconduct, should be disciplined, and (3) all things being equal, employees found guilty of the same offence should receive the same sanction.

Two types of fairness must be evident in all disciplinary cases, including dismissals, namely substantive and procedural fairness; these are the yardsticks used to assess whether, or not, a dismissal, or lesser disciplinary action for that matter, was fair.

Substantive fairness has four elements.  Firstly, there must be a fair reason for the disciplinary action, or dismissal, and secondly, discipline must be applied consistently. The third important factor is that if the employer has sufficient proof of guilt, prior to selecting a sanction, the employer is required to give careful consideration to mitigating and aggravating circumstances.

Mitigating circumstances are factors presented by the employee, in an attempt to persuade the disciplinary hearing chairperson to show leniency in their selection of a sanction.  Mitigating factors would include length of service, whether the employee has a clean disciplinary record, age, and any other personal circumstances which may have a bearing on the sanction choice (such as the employee being a sole breadwinner).

Aggravating circumstances are factors presented by the employer complainant, and are the employers sentiments on which sanction should be selected, and why.  For example, an employer may submit in aggravation that (1) the employee has short service, (2) the employee has a poor disciplinary record, (3) the employee has shown no remorse, and (4) importantly in potential dismissal cases, the trust relationship has not merely been damaged by the employee having been found guilty of the misconduct, but has in fact been broken beyond repair, thereby rendering the ongoing employment relationship intolerable.

In the event that an employer seeks dismissal on grounds that the trust relationship has been damaged beyond repair, this employer view must be justified, as the CCMA will not merely agree that a trust relationship has bene broken beyond repair, simply on the ‘say-so’ of the employer.  An investigation will be conducted to establish whether, or not, the presumption of an irreparable breakdown in trust is reasonable in the circumstances.

Item 7 in Section 8 of the Labour Relations Act (Code of Good Practice: Dismissal) sets out guidelines for employers as far as substantive fairness is concerned, and in so doing, focuses on the fact that the employer is required to also show (1) that the employee contravened a rule, (2) that the rule or standard was valid and reasonable, (4) that the employee knew, or should have known, the rule or standard, and (5) that dismissal was a fair and appropriate sanction.

Put differently, when it comes to the selection of an appropriate sanction, it is frequently said that “if the employer’s choice of sanction makes the court whistle, it is too harsh”.

In addition to being substantively fair, disciplinary action must also be procedurally fair.  Quite simply, employers are obliged to adhere to their internal disciplinary procedures, which set out the manner in which disciplinary processes will be implemented in the company.  This would include, the notice period to be applied prior to disciplinary hearings being convened, and the employee’s right to representation (typically internal representation only).  Additionally, the misconduct allegations must be clear communicated to the employee, and an interpreter should be sourced should the employee elect to defend themselves in their mother tongue.

Remember too that the amount of proof required to prove an employee guilty of misconduct is proof of probable guilt (proof on a balance of probabilities) often explained on the basis that the probabilities that the employee is guilty must be greater than (not equal to) the probabilities that the employee is not guilty.

Finally, disciplinary hearings were never intended to be conducted in a complicated, criminal procedure-like manner.  It is understood that laypersons oversee disciplinary processes.  Fairness and reasonableness are key.