Substantively fair discipline? CRS Technologies warns employers to tread carefully

When it comes to discipline in the workplace, South Africa’s labour law covers all aspects – including how cases are evaluated and if procedures were followed correctly. It is critical that employers adhere to the conditions of what is prescribed as being ‘Substantively fair’, otherwise it could place the business and the outcome into disrepute, according to CRS Technologies.

HR and HCM experts at the workplace solutions and services company explain that any case involving disciplinary procedures must be decided on merits and according to fair reason without any underhanded sanctions being made.

“When the Chairperson has established that a fair procedure has been followed, he or she must then review the evidence presented and decide, on a balance of probability, whether the accused is innocent or guilty. If the accused is guilty, the Chairperson must then decide what sanction to impose taking potential mitigating or aggravating factors into account. If the Chairperson decides to impose a sanction of dismissal, he or she must decide, after considering all the relevant factors including past cases of a similar nature insuring consistency in sanctions, whether the dismissal is being imposed for a fair reason,” says Nicol Myburgh, Head of Human Resources at CRS Technologies.

The ‘fairness’ of a case is of critical importance and has far reaching consequences, particularly if an employer believes there are grounds for dismissal and wants to pursue this course of action.

Myburgh adds that the Labour Relations Act recognises three grounds on which a termination of employment might be legitimate: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.

“In other words, misconduct, the ability of the employee to fulfil required tasks and retrenchments,” says Myburgh.

This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.

In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.

CRS Technologies says that misconduct is often put forward by businesses as the main reason for dismissal of employees. However, the law is clear on the matter and has to be considered before any action is taken.

According to the Labour Relations Act, misconduct is defined as unacceptable or improper behaviour. “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable,” says Myburgh.

Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.

“When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself,” Myburgh adds.

The key message from CRS Technologies to the market is to exercise caution and seriously evaluate whether or not a sanction is substantively fair by testing against Schedule 8 of the LRA and best practice.

The company further advocates asking the following questions to assist in this evaluation: –

  • Did the employee contravene a rule or standard regulating conduct in, or of relevance to, the workplace?
  • if a rule or standard was contravened, whether or not-
    • The rule was a valid or reasonable rule or standard?
    • The employee was aware, or could reasonably be expected to have been aware, of the rule or standard?
  • Even if the employee did commit the act in question, was the employee to blame for this?
  • Was there no other available disciplinary action, short of dismissal, which could realistically have been chosen which could have served as an effective corrective measure?
  • Have the unique circumstances of this case been properly taken into account?
  • Have the mitigating and aggravating factors been considered?
  • Was the penalty of dismissal consistent with the sanctions imposed in other similar cases?
  • What damage and what degree of damage (loss) has there been to the employer?
  • Consider also the circumstances surrounding the breach of the rule.