Can you remember when you were little and your parents used to tell you that there’s no such thing as a ‘small lie’ or a ‘big lie’ and how you would be in the same amount of trouble if you lied, no matter what it was about?
Chances are, like me, you do remember being taught that principle at home, at school and at church. Chances are, if you have kids, you are even repeating the lessons for a whole new generation.
Why then, are we all so seemingly unwilling to apply those same principles at work when dealing with misconduct and disciplinary enquiries?
When taking disciplinary action against an employee, managers often focus on whether or not the Company or any member of public suffered any direct or indirect prejudice as a result of the actions of the employee concerned. Although it is important to consider this and many other factors, it is not the main consideration – especially not in determining whether dismissal is a fair sanction.
After the introduction of the Labour Relations Act in 1995 (the LRA) , one of the earlier cases heard at the CCMA, confirmed that the decision to dismiss an employee should be based on the underlying legal principle. In this specific case, an employee had been dismissed for stealing a can of cooldrink from their employer (a restaurant). When the matter was heard at arbitration before the CCMA, one of the arguments led by the dismissed employee was that the sanction of dismissal was too harsh, especially when considering the value of the item stolen. The CCMA Commissioner did not agree and held that it is not about the materiality of the amount, but instead it is about the underlying principle – theft, which is related to other acts of dishonesty – that should be considered. The fact of the matter, was that the employee stole from their employer and this one singular act of misconduct, caused irreparable damage to the trust relationship between the employer and the employee. Trust, after all, forms the basis of the employment relationship.
In the general work context, it is important to bear this fact in mind when considering whether or not to take formal disciplinary action against an employee, and when considering what a fair sanction or penalty would be under the circumstances. If the employee lied about something – no matter what it was and no matter what their reasons for lying were – the underlying legal principle is that the employee was dishonest. The question that should follow logically then, is what is the impact of this dishonesty on the trust relationship? If the relationship has been permanently damaged, dismissal is often the only sanction possible.
Similarly, in matters where any amount of negligence is concerned, it is important to ask whether a reasonable person, given the same set of circumstances, would have acted differently. If the answer to that question is ‘yes’ then the underlying legal principle to be applied to the merits of the matter, is that the employee was negligent. Thereafter, the prejudice suffered by the Company or any other party, is considered – again, just because the prejudice was not significant it does not mean that the employee will not be dismissed, as there is a common law duty on employees to always act in good faith and in the best interests of their employer. In matters relating to negligence, the employee has usually breached this duty and acted in a manner that is contrary to the best interests of the employer.
So, the next time you need to consider taking disciplinary action against an employee, ask yourself what the underlying legal principle really is – is it negligence, dishonesty (including theft and fraud), dereliction of duty or just an ongoing disdain for the policies and procedures within the Company. Asking yourself this question will help you to differentiate between serious matters and those that require a less severe, corrective approach.
It is in your own best interests though, as well as those of your employer, that you get assistance and advice from an employment law professional.