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This week, Grant Ray-Howett of Kanichowsky, Solomon and Charalambous brings us the first of a three-part series on the issue of dismissal.

When Considering Dismissal

In order for a dismissal to be fair, there has to be both substantive and procedural fairness. Substantive fairness refers to the reason for the dismissal, while procedural fairness refers to the procedures that are to be followed when dismissing. According to the Labour Relations Act there three broad categories of reasons, that can be deemed to be fair reasons for dismissal:

• Misconduct
• Incapacity or Poor Performance
• Operational Requirements

This week we shall be examining dismissals due to misconduct, while dismissals due to incapacity, operational requirements and procedural fairness will be dealt with in following articles.

Dismissals due to misconduct refers to dismissals due to an employees behaviour in the workplace. Typical examples of misconduct are theft, insubordination, late coming and negligence. Employers often feel that they are justified in dismissing an employee for most if not all forms of misconduct.

In fact, if we could state a general principal, the opposite would be true. The Labour Relations Act makes it clear that dismissal, as the most severe form of discipline, is restricted to cases of serious misconduct. According to Schedule 3(8) of the Labour Relations Act, the concept of corrective and progressive discipline is to apply in considering discipline for misconduct. This concept of discipline can be expressed in terms of three principals:

1. The purpose of discipline is a means of employees to know and understand what standards of behaviour are required of them.
2. Efforts should be made to correct the employees behaviour through a graduated system of disciplinary measures with dismissal being the most severe form
3. It is generally not appropriate to dismiss for the first offence unless there is serious or grave misconduct.

While understanding these principals do not help one in a direct sense to recognise a form of misconduct that would warrant dismissal, it is from these principals that a set of guidelines can be derived. According to the Labour Relations Act, in determining whether a dismissal for misconduct is warranted, regard must be paid to the following factors:

• Did the employee breach a rule or standard?
• If yes, then was that rule valid or fair?
• Did the employee know of the rule or standard or could he or she be reasonably be expected to know?
• Was the rule or standard applied consistently?
• Was the dismissal an appropriate sanction for the contravention of the rule or standard?

If all these questions can be answered in affirmative, one can be certain that the dismissal is substantively fair. The act refers to these factors as “guidelines” due to the fact that they are to be seen in context. That is to say that when asking whether a rule is valid or fare or whether dismissal was an appropriate sanction, one must take into account the nature of the work or work environment in which both the employee and employer find themselves.

For example take the difference between a pilot who is drinking while at work and a domestic who is caught drinking at work. In the former case, one would be justified in dismissing due to the nature of the work and the demands placed on the employee while in the later case, one would be less justified in dismissing the employee.

However in order to gain a better understanding of how these factors operate, it would be useful to look at an actual example. This example is based on an actual case that was referred to us. Miss Forgetful was hired by Tasty Shack Hamburgers as a opening shift manager. One of the rules laid out in a code of conduct given to all employees, was that a float in a till must be counted before the till went out and the total takings of that till reconciled at the end of the shift.

Another rule was that no other employee may use or allow their till to be used by another employee. On one day, during a shift, Miss Forgetful noticed that the store was incredibly busy and that the tellers where struggling to cope. She therefore decided to place a managers till in which she would operate herself. She did this but because it was busy, she did not count the float before putting the till in at the cashing up point.

During the shift, she was called away by the owner to testify at a disciplinary hearing. She asked a fellow manager to operate the till until she returned. After the disciplinary hearing, Miss Forgetful clocked out, forgetting to cash up her till. At the end of the last shift that day, this till was discovered by that shift’s manager and upon cashing the till up, found it to be R200 short. This kind of mistake had been made by other managers before and the owners had reacted by deducting the amount that the till was short by from their wages. Miss Forgetful was then dismissed. Was her dismissal substantively fair?

Let’s apply the factors that have been discussed:
Miss Forgetful did breach a rule or standard. This is clear from the fact that there all employees where required to count the float before putting the till out at the cash point. Miss Forgetful failed to do this. Also Miss Forgetful allowed another employee to use her till. These rules we could argue are fair because a failure to observe them makes it difficult for the owners to regulate or control losses or theft. It is also clear that Miss Forgetful knew about theses rules or ought reasonably have known due to the fact that these rules where contained in a code of conduct that where given to all employees. However, if these rules where not published in a code of conduct, one would have to show that the circumstances of the workplace where such that Miss Forgetful ought to have known about them.

However one would run into trouble when arguing that these rules where consistently applied. As discussed above, a fellow manager offered to take over the till while Miss Forgetful was away. Thus this fellow manager also contravened the rule which prohibited one from using other employees till and allowing other employees to use your till. This fellow employee also did not count the float before using the till. In addition other managers had also made the same mistake but had not been dismissed. The final factor to be considered is whether dismissal was an appropriate sanction for the contravention of these rules. Relevant considerations in determining this factor are the gravity of the offence and also the employees disciplinary record. In terms of assessing the gravity of the offence, we should ask “ was dismissal the only option?”. The fact that other forms of disciplinary action had been applied in other cases would mitigate answering this question in the affirmative.

Before ending this discussion, it would be useful to pick up on a concept mentioned in the above example, that of the code of conduct. The Act mentions that the employer should adopt a code of conduct for the workplace. This is a useful recommendation as it creates certainty and encourages consistency in terms of what standards and how those standards are applied. Thus adopting a code of conduct would assist the employer when defending himself against claims of unfair dismissals when it comes to misconduct. A code of conduct should list the standards or rules that are to be applied in the workplace and what disciplinary action will be taken when a particular standard or rule is breached.