IS FAILURE TO UNDERSTAND A RULE A VALID DEFENCE?

[Ivan Israelstam]

Item 7(b)(ii) of Schedule 8 of the LRA effectively requires an arbiter to consider whether dismissal is fair if the employee was not “aware” of the rule that he broke. Does “awareness” in this context mean that the employee merely “knew” the contents of the infringed policy or does the employer need to prove that the employee “understood” the policy in the way that the employer claims it was intended? Should the employee be dismissed if he can show that the policy wording is unclear and that, at the time of the infraction, he truly did not understand the policy to prohibit his action?

[Ivan Israelstam]

For me, the critical question and the evidence I, as an adjudicator, require to prove knowledge or awareness of the rule has always been: At the time that the employee committed the offence, did he or she know that what they were doing would attract disciplinary action and what the likely sanction would be. It then rests on the employer to adduce evidence to prove, on a balance of probability that:

• at the time the employee committed the offence, they knew that, if caught, they would be disciplined; and
• at the time the employee committed the offence, they knew what the likely sanction would be.

[Patrick Deale]

Yes, it would be a valid defence. The test to determine the validity of the defence would be an objective one: Would a reasonable person in the employee’s position have understood the rule and the consequences of a breach? If the answer is “no” – the defence would be valid. If it’s “yes” – the defence would not be valid.

[Ingrid Lewin]

For me, the critical question and the evidence I, as an adjudicator, require to prove knowledge or awareness of the rule has always been: At the time that the employee committed the offence, did he or she know that what they were doing would attract disciplinary action and what the likely sanction would be. It then rests on the employer to adduce evidence to prove, on a balance of probability that:

• at the time the employee committed the offence, they knew that, if caught, they would be disciplined; and
• at the time the employee committed the offence, they knew what the likely sanction would be.

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