By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Item 3 (5) of Schedule 8 to the LRA effectively requires employers to consider, in addition to the seriousness of the offence, mitigating circumstances before deciding whether to impose the penalty of dismissal. Such circumstances could include the employee’s personal circumstances, past disciplinary record, length of service and job-related circumstances.
The courts take this provision seriously and will not allow employers to flout it.
However, in practice, where employees commit grossly serious offences employers are often reluctant to impose sanctions short of dismissal even if mitigating circumstances call for such softer sanctions. For instance, should an employee have been grossly derelict in his duties this would have resulted in serious losses for the employer, and the issuing of a mere warning would not satisfy the employer’s quest for justice.
For example, in a case where an employee missed a meeting with a large, key client and so caused the loss of that client, the employer would likely be dissatisfied with any sanction other than dismissal. This is because the loss of such client would have been very costly. And the employer would be unable to trust that the employee would not do something similar again. But what if the reason that the employee missed the client meeting was that he was under extreme work pressure? Should the employer fail to take this into account it would be flouting the requirements of labour law.
To be clear, the law does not say that, in every case where there are mitigating circumstances the employer must impose a lighter penalty. The law only requires the employer to be able to show that it fully considered all mitigating circumstances and took them into account in arriving at the penalty. So, for example, where the mitigating circumstance of extreme work pressure is outweighed by aggravating circumstances the courts might uphold a dismissal decision. For instance, in the example I used above, if the employer had offered the employee help in easing the pressure of work and he refused it, the courts would likely agree that the extreme work pressure was due to his own faulty decision to refuse help.
Despite the above employers still frequently fail to take mitigating circumstances into account. For example, in the case of South African Police Services vs Mkonto (SAFLII 08 January 2026. Labour Appeal Court case No: PA 8/24) The employee was dismissed for using the employer’s vehicle for private purposes. This was aggravated by his falsification of his travel records.
The Court accepted that the offence merited dismissal but still ordered the employer to pay the employee three months’ compensation. This was because the employer had not considered the employee’s mitigating circumstances.
Had the employer simply carried out its duty to consider mitigating circumstances it would have avoided the cost of this compensation order and would also likely avoided the litigation costs.
The problem of employers making such costly and unnecessary mistakes is easily prevented where the employer exposes those in charge of the workplace to labour law training.
While such training can be costly money wise and time wise, excellent training products are now available that cost very little and that allow executives and HR/IR practitioners to access the learning material at times suitable to their busy schedules.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
