Llaw 221 Study Unit 5.3 - Dismissal for Misconduct PDF

LLAW 221 STUDY UNIT 5.3 – DISMISSAL FOR MISCONDUCT STUDY OUTCOMES 1. Indicate the necessity of discipline and the acceptance of a disciplinary code 2. Explain substantive fairness with reference to the Code of Good Practice, item 7 3. Describe procedural requirements that needs to be c...

LLAW 221 STUDY UNIT 5.3 – DISMISSAL FOR MISCONDUCT STUDY OUTCOMES 1. Indicate the necessity of discipline and the acceptance of a disciplinary code 2. Explain substantive fairness with reference to the Code of Good Practice, item 7 3. Describe procedural requirements that needs to be complied with 4. Identify the grounds for dismissal for misconduct and apply substantive and procedural principles to them (Grogan) 5. How is onus of proof applied here? 6. Discuss sanctions that the employer can apply  DISMISSAL FOR MISCONDUCT 1. Misconduct is the first of 3 grounds for fair dismissal 2. In case of misconduct employee is directly responsible for his own dismissal (contrary to the other two grounds) DISCIPLINARY CODE 1. Item 3(1) of the C of GP :all employers should adopt disciplinary rules which establish the standard of conduct required of employees 1. Every employer should implement such code 2. Create certainty among employees regarding expected conduct 3. How will substantive fairness be determined? 4. Read Item 3 with Item 7 DISMISSAL ALWAYS BEST OPTION? 1. Item 3(2)-(5) 1. Progressive discipline 2. Attempt 'rehabilitation' 3. Informal and formal warnings, deprivation of discretionary benefits, demotion and suspension 4. Repeated 'minor' misconduct receives warnings (but only to a point – then dismissal) 5. Dismissal therefore not appropriate for first offences – EXCEPT: 1. In serious cases that permanently damages the employment relationship, ex. dishonesty, serious damage to the employer, assault, gross negligence, willful endangerment  SUBSTANTIVE FAIRNESS Guidelines in cases of dismissal for misconduct Any person who is determining whether a dismissal for misconduct is unfair should consider – (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and; (iv) dismissal was an appropriate sanction for the contravention of the rule or standard.  PARTICULAR OFFENCES 1. Gross dishonesty 1. Theft, fraud etc 2. Dishonesty can lead to summary dismissal or dismissal at first instance 3. Anglo American Farms –Effect that the dishonesty has on the employment relationship – trust violated 4. Investigate properly – prove on balance of probabilities 5. Theft viewed in a very serious light – the degree of theft is irrelevant (Mayimbo v CCMA)  PARTICULAR OFFENCES The employee (a waiter) took a can of Fanta. He was dismissed. "…the relationship between such an employer and such an employee is of such a nature that, for it to be healthy, the employer, must, of necessity, be confident that he can trust the employee not to steal his stock-in-trade. If that confidence is destroyed or substantially diminished by the realization that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer. Thenceforth he will, as it were, have to be continually looking over his shoulder to see whether his employee is being honest." "I regard the correct test to apply in these circumstances to be whether or not respondent's actions had the effect of rendering the continuation of the relationship of employer and employee intolerable." [Anglo American Farms v Komjwayo] Also see Metcash Trading v Fobb. PARTICULAR OFFENCES 2. Conflict of interests 1. Employee must advance employer’s interest 2. If own interests are in conflict – effects employment - and trust relationship 3. Ex. Employee in competing business 3. Willful damage to property 1. Should be willful and serious for dismissal 2. Common negligence does not warrant immediate dismissal 3. Gross negligence - employee really didn’t care whether he damaged the business’s property – summary dismissal may be fair PARTICULAR OFFENCES 4. Assault or fighting 1. Physical assault not required 2. Proper proof of threat is required 3. Assault outside business premises also valid – When? 4. Assault on business premises but after hours? 5. All factors should be considered - Personal circumstances, provocation, self defense 6. Conduct must be immediate after provocation, of self defense has to be proportional to the threat (not more than what is necessary to ward off the threat)  PARTICULAR OFFENCES Employee, doing inspection of a client's private airplane, was met with aggressive and abusive conduct from the client where the client yelled at him and made racist comments against him. The client wagged his finger in front of his face and stood so close to him while yelling at him that the client's spittle flew into his face. The employee pushed the client away from him with his flat hand on the client's chest. Employee dismissed for assaulting/manhandling the client. Snyman says: "A person acts in private defence, and her act is therefore lawful, if she uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon her or somebody else's life, bodily integrity, property or other interest which deserves to be protected, providing the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is not more harmful than necessary to ward off the attack." "The applicant defended himself by pushing Mr Dhlamini away from him with open hands and there is no evidence that he had harmed or injured Mr Dhlamini in any way whatsoever. The questions whether the applicant could have warded off the attack in a 'less harmful' way and whether his act of defence had been more harmful than necessary, consequently do not even arise." "The fact that the applicant in casu had acted in private defence means that he should not have been charged with misconduct…" [Solidarity obo Armstrong v SA Civil Aviation Authority]  PARTICULAR OFFENCES Employee slapped another through the face on a Monday after receiving lewd telephone calls from him over the weekend. She claims provocation and did not consider following the employer's grievance procedure. Employee dismissed for assault. "…if regard is had to the fact that she had sufficient opportunity to consider how to deal with the matter before returning to work on Monday; that she was unable to explain why she had failed to report a grievance to human resources; and that she availed herself of the opportunity to verify the telephone number that morning, it would be apparent to any reasonable decision maker that the defence of provocation cannot be sustained on the facts. Her conduct was deliberate in the face of her knowledge of the disciplinary code and grievance procedure and she cannot be said to have retaliated out of anger." [Trident v MEIBC] PARTICULAR OFFENCES 6. Gross insubordination - Draw comprehensive distinction between insolence and blatant insubordination - NB - Employee EITHER shows disrespect or is cheeky OR blatantly refuses to follow the employers instructions - Has to be deliberate, serious and/or persistent to justify dismissal - One time will mostly lead to a mere warning - Defences of the employee?  PARTICULAR OFFENCES 7. Sexual harassment 1. Persistent and unwanted sexual advances 2. Various forms: Codes of Good Practice – Sexual harassment (1998 and 2005) 3. Infringe the employee’s right to human dignity and integrity 4. Objective test to determine employee’s feelings of resentment – Problematic! 5. Employer must prove that the conduct amounted to sexual harassment – factors in 1995 Code should be considered 1. Was the harassment sexual in nature 2. Was harassment as a result of gender or sexual orientation 3. Was the harassment “unwelcome” 4. Nature of the conduct 5. Impact on the employee  PARTICULAR OFFENCES Employee hugged and kissed his female colleague against her will and sat on her lap. She asked him to stop but he persisted. He was found guilty of sexual harassment and dismissed. "The appellant's conduct constituted sexual harassment, both in terms of the respondent's policy document on sexual harassment and in terms of the law developed by the Industrial Court… …any unwanted sexual behaviour or comment which has a negative effect on the recipient constitutes sexual harassment… It is obviously not every act of sexual harassment which will lead to dismissal. Dismissal was, nevertheless, the appropriate remedy in this case. The harassment was of an aggravated kind. It occurred over a period of some four hours and the appellant showed no remorse. Instead, he fabricated a story that the complainant had consented to his behaviour. The dismissal was substantively fair." [Reddy v University of Natal]  PARTICULAR OFFENCES 8. Abusive and racist language 1. If serious – can lead to dismissal - In presents of other employees - No justification for the utterance etc. - Mitigating factor if the victim reacts violently against the perpetrator - provocation - Racism viewed in a serious light - Abusive words spread by an employee on social media which could harm reputations – dismissal [Sedick v Krisray] - Accusations of racism? - Relevant circumstances considered – mitigating factors PARTICULAR OFFENCES 9. Intoxication on duty 1. Employee dismissed if shows up for work drunk or high (of uses on the premises 2. Does not have the ability to perform his work – employer should prove such 3. Can be either misconduct or incapacity (fine line) 4. Alcoholism : incapacity that should be treated 1. refer to counselling and/or rehabilitation 5. Tanker Services – employees not able to perform their duties at all or safely do so 6. Depends on the nature of the job 7. Intoxication not lead to dismissal? PARTICULAR OFFENCES 10. Unauthorised use or possession of company property 1. Company's property may only be used for work-related purposes 2. If there exists a prohibition on the use for private purposes, it may justify dismissal 11. Negligence 1. Failure to exercise degree of care - expected of reasonable person 4. Damage or injury had not necessarily resulted, possibility would suffice 5. Single negligent act does not justify dismissal 6. Gross negligence might PARTICULAR OFFENCES 12. Time-related offences 1. Duty to perform services – failure is an offence 2. Factors considered at absenteeism - Reasons for absence - Employee’s service record - Employers treatment of such cases in the past 3. Employee should give valid reason for absenteeism 4. For dismissal to be fair – absence must be for unreasonable period and serious impact on business 5. Viewed in serious light if employee cannot provide valid reasons PARTICULAR OFFENCES 13. Collective absenteeism 1. Stay-aways in protest of something 2. Can be done under control of trade union – valid 'protest action' 3. But if unprotected 'protest action' (unprotected stay-away) it will amount to an offence 4. Dismissal fair 5. Employer must hold disciplinary hearings PROCEDURAL FAIRNESS Introduction 1. Employee entitled to such procedure – regardless of the employees’ guilt 2. Prevent arbitrary spur-of-the-moment dismissals 3. Code of Good Practice: Dismissal sets out the procedure 4. Item 4  PROCEDURAL FAIRNESS 1. Investigation 1. Inquiry before the decision to dismiss employee 2. PURPOSE: Is there a valid case against the employee? 3. Interrogation of employees concerned and sometimes the culprit himself 4. Lie-detector tests 5. Entrapment 6. Telephone lines tapped - Keep legislation in mind (RICA) – - must be done in order to establish the existence of facts - Used wholly or partly in connection with the business concerned - Informed users of the interception or monitoring PROCEDURAL FAIRNESS 2. Fair hearing requirements 1. Proper notice 2. Employee aware of charges 3. Hearing precede decision 4. Hearing not unreasonably delayed 5. Employee present at hearing 6. Employee permitted representation 7. Employee may call witnesses 8. Presiding officer should be impartial 9. Decision with Reasons