Schedule 8 of the Labour Relations Act (LRA) provides that certain types of misconduct may merit dismissal, and also provides that dismissal would be unfair if circumstances mitigate misconduct strongly enough. The employer deciding whether a guilty employee deserves to be dismissed, must take into account circumstances of the case, as well as circumstances like personal situation, disciplinary record, and length of service. In the case of Sedumo and another v Rustenburg Platinum Mines (2008 2 BLLR 24), a key issue raised in the Constitutional Court was how a Chairperson should deal with mitigating circumstances. Chairpersons often have difficulty deciding what weight to give mitigating circumstances, and thus how to satisfy CCMA and courts.
A number of factors contribute to the 'circumstances' problem:
* Some Chairpersons are not trained, or not sufficiently trained
* Some Chairpersons lack experience
* Some Chairpersons lack knowledge of the content and spirit of the law
* CCMA does not follow a standard policy for weighting mitigating circumstances, and different Commissioners have different views.
DERELICTION OF DUTY CASE
In the case of Sidumo, a guard, his conduct was dishonest, or at best, gross dereliction of duty. He claimed that dismissal was too harsh, due to his 15 years of service, and since he had not been trained in the specific task he was required to do. In a shock decision, the Court found in the employee's favour and upheld a CCMA reinstatement award. It appears that the Court did not consider what training an experienced guard needed, in order to know that he had to comply with an instruction to search every person exiting a Precious Metals gate.
The question also arises as to why 15 years of service should significantly mitigate a
penalty. Did he work for 15 years due to loyalty, or was he unable to get another job?
I could be used against him that his years of experience should have taught him to search employees he had been instructed to search, the importance of this job, and the serious consequences of dereliction of duty.
WEIGH UP CIRCUMSTANCES
Employers have a dilemma in such circumstances. They know that gross dereliction deserves dismissal and breaks trust. Employers also know that the CCMA, backed by the Constitutional Court, expects them to give significant mitigating weight to long service. Employers should give sufficient weight to length of service, but identify and demonstrate reasons why mitigating circumstances are outweighed. Legal danger lurks in a lack of understanding of how to balance employer responsibilities.
* Ivan Israelstam is CE of Labour Law Management Consulting.
Misconduct vs. 'circumstances'
A number of factors contribute to the 'circumstances' problem:
* Some Chairpersons are not trained, or not sufficiently trained
* Some Chairpersons lack experience
* Some Chairpersons lack knowledge of the content and spirit of the law
* CCMA does not follow a standard policy for weighting mitigating circumstances, and different Commissioners have different views.
DERELICTION OF DUTY CASE
In the case of Sidumo, a guard, his conduct was dishonest, or at best, gross dereliction of duty. He claimed that dismissal was too harsh, due to his 15 years of service, and since he had not been trained in the specific task he was required to do. In a shock decision, the Court found in the employee's favour and upheld a CCMA reinstatement award. It appears that the Court did not consider what training an experienced guard needed, in order to know that he had to comply with an instruction to search every person exiting a Precious Metals gate.
The question also arises as to why 15 years of service should significantly mitigate a
penalty. Did he work for 15 years due to loyalty, or was he unable to get another job?
I could be used against him that his years of experience should have taught him to search employees he had been instructed to search, the importance of this job, and the serious consequences of dereliction of duty.
WEIGH UP CIRCUMSTANCES
Employers have a dilemma in such circumstances. They know that gross dereliction deserves dismissal and breaks trust. Employers also know that the CCMA, backed by the Constitutional Court, expects them to give significant mitigating weight to long service. Employers should give sufficient weight to length of service, but identify and demonstrate reasons why mitigating circumstances are outweighed. Legal danger lurks in a lack of understanding of how to balance employer responsibilities.
* Ivan Israelstam is CE of Labour Law Management Consulting.
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