Disciplinary Enquiries: the underlying legal principle 6


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.

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6 thoughts on “Disciplinary Enquiries: the underlying legal principle

  • Des Squire

    Hi Deborah
    You have stirred up a hornets nest – well done.
    Many of the problems existing in business today stem from the fact that managers fail to or refuse to implement their own policies and procedures. As a result they try to justify unacceptable behaviour, to place a severity value on dishonesty and theft and at the same time refuse to take action.
    Management cannot afford to ignore any infringement of its rules and managers who do so should face disciplinary action. If they do the create uncertainty, employees see bad behaviour or misconduct as being “OK”. Managers (and employees for that matter) have an obligation to take action against anyone breaking a rule or otherwise infringing company policies. To fail to do so may result in disciplinary action.
    Theft, dishonesty and breaches of ethics have one value only – there can be no minor or more severe breaches – they are all equal. If a company has a “zero tolerance” appraoch then value does not come into the equation and should not be considered. Theft is theft, is theft.
    Keep up the goodwork.

  • Kgatelopele Makua

    Very thoughtful
    Thanx for bringing this to the table.

    Is it not true that people are ill-disciplined because we got disciplinary procedures? Why can’t we have honesty procedures and honesty score cards and reward programmes in our work place?

    People practice what you mostly preach around them if you preaching honesty rather than disciplinary actions against their illegality of conducts at work that is what will resonate in their thinking and we keep breading fraud, theft and other unwanted practices at work because that is what we feed to the ears of those who have to listen to us when we are talking to them and it is the nature of thinking to mostly think of what echoes in your head and remember in form of pictures. It is obvious that if I come to you and mention the word red you would mainly see something red in you mental eye how possible is it to see gold even if is in front of you.

    We need to watch what we instill to those we surround ourselves with this applies to workplace as well. We’ll always fire and hire rather than to groom quality staff members.

    Labour relations Act or no Labour relations Act we still owe it to ourselves to radiate the higher energy of our beingness that will heal those we put into the position of making our business to work more effectively, training, disciplinary procedures and work ethics are not enough. Let people blend with the beingness of those who lead them. What you see in a follower or a fan is what is been absorbed from the leader or the modeler.

    Be a center of influence and let those who follow you become your raving fans. That is leadership rather than the intelligence of the underlying legal principle. And we would create loyal quality staff members. How many people can we afford to dismiss after a loose of a profit generating item. We loose staff members and profit items at once and we are so cool with it just because we are so good in identifying underlying principles.

  • Deborah Hartung Post author

    Thanks for all the comments and feedback guys.
    Yip, the Checkers judgment is of interest as it just drives home the point again that we always have to consider whether ‘dismissal is reasonable under the circumstances’.
    And just because we have a disciplinary code saying that x offence is dismissable, chairpersons always have to consider the unique facts of the matter and always have to consider mitigation, aggravation etc. Often, sanctions short of dismissal (such as demotion, transfers to other departments and even suspension without pay for a fixed period) may be the safer way to go.

  • Nkosinathi Mkhize

    Thanks for the submissiom Deborah.

    On the question of leagal principle, the judgment on the Ramdaw / Checkers case, would you say it follows this principle? I ask this because if the legal principle is the fundamental factor, then we will not perhaps be concerned with matters of remorse, service records etc, in short mitigating factors. The LAC seems to be understanding these matters differently. I have used this judgment in one of the CCMA case I have had to defend, more especially on the commissioner’s right to interfere with company policies (more especially if they are founded on legal principle) I guess the labour law is becoming more interesting by the day! What do you say?

  • Theresa Cook

    In an industry where there is a high turnover of staff, such as security, the Cahirperson has the duty to apply their mind to each and every case, and deal with each case on its merits. This would mean that the comments from the discussion are very valid, and that substantive and procedural process are followed. One also has to take into account the industry that one works in, for example, if you work in an admininistration department and a staff member steals a pen, the repercussions are not that great. However, if you are a security officer or a Room Attendant in an hotel, stealing a pen is very serious, afterall as a security provider you are meant to prevent theft, and with a Room Attendant, you are going into guests rooms, and the implications are that you might steal from the guests.
    Discuiplinary issues are never easy, but applying your mind, the blalance of probabilities, consitency in applying the disciplinary code, and fairness should lead to the correct action being taken.