Even where an employee has taken the life of a colleague, his dismissal is likely to be unfair if the presiding officer has not properly taken significant mitigating circumstances into account.

The LRA’s Code of Good Practice: Dismissal (the Code) conditionally allows employers to dismiss employees for the most serious offences including, amongst others, assault, gross insubordination, wilfully endangering safety or gross dishonesty.

The employer’s disciplinary code may have other offences that merit dismissal, for example, gross sexual harassment, racist behaviour, gross dereliction of duty, or bringing the name of the company into disrepute.

However, according to the Code the employer’s right to dismiss the employee even for gross offences, is limited by the unique circumstances of each case. This means that there is no blanket licence to dismiss employees even for the most heinous offences.

The person deciding whether a guilty employee deserves to be dismissed must consider all circumstances of the case, as well as the employee’s personal circumstances such as their disciplinary record and length of service. It is important to note that the Code does not say that the employee’s personal circumstances, disciplinary history, or length of service must be considered in the employee’s favour to mitigate the penalty. The code merely says that these factors must be taken into account; period. The wording of the Code does not stop the employer from also taking aggravating circumstances into account. For example, it is accepted practice for the employer to use unexpired warnings for a similar offence as aggravating circumstances to strengthen the penalty.

However, it appears that although the Code does not specify it, arbitrators and Labour Court judges expect an employer to view an employee’s long service as a mitigating circumstance potentially strong enough to reduce an expected dismissal penalty to a lesser corrective measure. For example, in the case of Sedumo and another vs Rustenburg Platinum Mines Ltd (2008 2 BLLR 24) a key issue raised in the Constitutional Court was that of how a Chairperson should deal with mitigating circumstances. Chairpersons often have difficulty deciding how much weight to give mitigating circumstances and thus how to satisfy the CCMA and the courts. There are several factors contributing to this problem:

  1. Chairpersons who are not trained or not trained enough
  2. Chairpersons who lack experience
  3. Chairpersons who lack knowledge concerning the content and spirit of the law
  4. The fact that the CCMA does not have one standard policy towards the weight to be given to mitigating circumstances. As different Commissioners have different views, it is difficult for Chairpersons to know what the standards are.

In the above-mentioned case, Sedumo’s actions were at worst dishonest and at best gross dereliction of duty. He claimed not to have been trained in the specific task he was instructed to carry out, that being to search each person exiting the gate he was stationed at. However, he had 15 years of experience as a security guard and the question arises as to what training such an experienced guard needs to know how to search every person exiting the Precious Metals gate. The question also arises as to why his 15 years of service should significantly mitigate his penalty. That is, was he at the company for 15 years out of loyalty to the employer, or was he unable to get another job? Why should his 15 years of service only be used in his favour? Why could it not be used against him since his years of long service should have taught him that he is required to search employees who he has been instructed to search, as well as the importance of this job and the seriousness of his failure to do so.

The employer has a dilemma in such circumstances. On the one hand, the employer knows that an employee behaving in such a grossly derelict manner deserves to be dismissed and that the employer cannot possibly continue to trust the employee. On the other hand, the employer knows that the CCMA, backed up by the Constitutional Court, expects the employer to give significant mitigating weight to 15 years’ service.

The employer thus needs to be able to give sufficient weight to the length of service but, at the same time, to be able to identify reasons why the mitigating circumstances are outweighed. The danger lies in the lack of understanding of how to balance these two responsibilities.

In Schooling vs Meadow Feeds Eastern Cape (Pty) Ltd [2017] 6 BALR 684 (CCMA) the applicant was dismissed for undermining the GM’s authority. The Commissioner found her dismissal to be unfair partly because she had not been given a chance to present mitigating circumstances. The employer was ordered to pay her R500 000.

Employers need to understand that while not all mitigating circumstances will protect an offender from dismissal, it is folly to ignore the employee’s right to present mitigating circumstances.

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