OVERVIEW: DISMISSAL FOR MISCONDUCT 2. Source: Emma Whitelaw, an Associate in the Employment Law Department at Bowman Gilfillan, Cape Town, details the issues. Compensation for Occupational Injuries and Diseases Amendment Bill and it’s inclusion of Domestic Workers. In this situation, the employee can be summarily (instantly) dismissed. Automatically unfair dismissals. ... COVID-19 Vaccine Plan For South Africa. Within limits, employment law does not recognise the principle ‘ignorance of the law is no excuse’. The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct. The Code of Good Practice: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an ‘appropriate’ remedy. Delivered: 31 August 2016 . Employees can be dismissed for one of three reasons: Misconduct; Incapacity; Operational requirements; The scenario above the dismissal is for alleged misconduct. By requiring the employer only to show that there were reasonable grounds for believing that the offence was committed (rather than proving that, on a balance of probabilities, the offence was actually committed) the court significantly reduced the evidentiary burden on employers.     8001,  021-423-3959 (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. 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-. Fax: 021 423 2105 Notify me of follow-up comments by email. Where a code does so, it is generally accepted that when that period expires, a warning lapses and the employee is considered to have a ‘clean’ disciplinary record. These documents typically set out the various offences for which employees may be subjected to discipline, and the sanctions that may be imposed for commission of these offences. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired. A disciplinary code should be progressive in nature and not punitive, meaning that measures for less serious transgressions should aim at correcting the behaviour of the employee and not to punish. Similarly, if the rule is unreasonable because it enjoins employees to perform work or actions that they cannot reasonably be expected to perform, a breach of the rule or instruction cannot be treated as a disciplinary infraction. Website: www.capelabour.co.za, 3 De Lorentz The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. These tests are simply ways of establishing whether the employer can reasonably be expected to continue with the contractual relationship with the employee concerned. Consequently, unlike Mr Marneweck, the applicant in this matter was still in the respondent‟s employment when he was charged and dismissed for misconduct before the notice period of his impending retrenchment had expired, or even begun. The employer should formulate and publish a disciplinary code that is made available to every employee and is explained to him or her if s/he is not sufficiently literate.     Gardens SOUTH AFRICAN REVENUE SERVICE : Third Respondent . The general principles relating to the use of past warnings are that the offence for which the employee is dismissed should be similar to the offences for which the employee received the previous warnings, and that the warnings should be relatively fresh and valid. Generally speaking, it is unfair in itself to treat people who have committed similar misconduct differently. The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures. Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. A variety of considerations may be relevant when considering a plea in mitigation. Employers have only a limited range of penalties that may be lawfully imposed.     Cape Town It is widely accepted that, the longer the period of service with the employer, the more seriously the employer should consider mitigating factors. Heard: 4 February 2016 . If it is more serious and dismissal is warranted, then a disciplinary enquiry [also known as a disciplinary hearing] is convened. This means that the employer’s decision to dismiss must stand unless the tribunal is satisfied (and can demonstrate) that the employer’s decision to dismiss is so unreasonable that no reasonable person would have taken such a decision in the circumstances. • Was the employee aware of the rule, or could he or she reasonably be expected to have been aware of it? Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. Employees accused of misconduct are thus faced with a stark choice: They can either deny the commission of the offence in the hope that the employer will not be able to prove it; or they can ‘confess’ and apologise in the hope that their remorse will count in their favour when mitigation is considered. It should therefore not be imposed if a lesser penalty would serve the purpose. Summary dismissal usually happens when an employee commits a serious act of misconduct. The Labour Relations Act serves to protect the employee’s rights according to the constitution, preventing them from any suffering caused by unfair dismissal in South Africa. In (Wooltru.Case 1989), the court equated insolence with impudence, cheekiness, disrespect or rudeness. Employers are permitted to introduce rules to cope with changing demands and circumstances. A decision is arrived at on the balance of probabilities. These are, basically, warnings, demotion, suspension and dismissal. In contrast, a dismissal for misconduct is based on the employee’s [conduct in respect of which fault may be attributed to the employee, for instance the] intentional or negligent non-compliance [with] company rules or standards. The Code of Good Practice: Dismissal, gives as examples of offences that may justify dismissal at first instance gross dishonesty, wilful damage to the employer’s property, physical assault on the employer, a colleague or a customer and gross insubordination.  bernard@capelabour.co.za Three of these requirements are: 1. Any dishonest conduct by employees can cause an employer to, figuratively, see red. 1. Employees may also argue that they were not bound by the rule because it was unlawful or unreasonable. Misconduct Misconduct is the most common justification for dismissal in South Africa, but there is no definition for it in statutory of business law. This code should list offences and appropriate measures that may be taken by the employer in the event of breach. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Schedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the […] 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, which provides: 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. 30 November 2009 employee culpably disregards the rules of the law in South Africa the! 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