Disciplinary Enquiries: the 3 Questions you have to ask before you dismiss

By deborahhartung, 27 January, 2010

It seems like aspects relating to employment law always draw a lot of interest and comment from fellow professionals on this site. This is great news and sharing our knowledge and wisdom in a forum such as this, enables all of us to learn, grow and increase our knowledge and capacity.

In previous blog posts and forum discussions, we have established the importance of considering every incident or act of misconduct in the workplace, on its own merits and we have highlighted the importance of not just looking at what appear to be the facts relating to this incident, but of also specifically investigating what the underlying legal principle may be.

Two colleagues have quoted the Checkers judgment and seemed to imply that our thinking regarding the importance of the underlying legal principle, is not entirely accurate.
When considering an overview of the facts in this specific judgment, it is important to be aware of the fact that an employee with more than 10 years service (which is long in any organisation) was caught eating in an area of the store where eating was specifically prohibited. This breach of a workplace rule occurred not once, but numerous times.

What is the underlying legal principle in the Checkers case?
It's very simply the intentional breach of a simple workplace rule that was well-known to the employee in question.

Once the underlying legal principle had been established, other facts needed to be taken into account. These included the circumstances surrounding the actual incidents of misconduct, as well as mitigating and aggravating factors.
The only question which remained then, is whether or not the intentional breach of a known workplace rule by an employee with more than 10 years' service, is so serious as to completely and irreparably damage the trust relationship that exists betewen the employer and employee.

Obviously, in this specific case, the findings of our Honourable Courts, were in the negative - and rightly so.

The lesson to be learned from this judgment and the many others like it, is simple: before dismissing an employee because a guideline in a disciplinary code provides for it, or because all the others who committed the same offence in the past were also dismissed, the Chairperson has to ask and answer three very important questions:

1. What is the underlying legal principle in the matter at hand?

2. Is what I have found the employee guilty of, so serious, that it completely and irreperably damages the trust relationship between the employee and their employer?

3. Is dismissal a fair sanction under the circumstances, or would a different sanction be more appropriate?

By following these simple guidelines and by keeping abreast of relevant developments and employment case law, organisations will significantly reduce and/or eliminate the risk of having dismissal sanctions in respect of misconduct, overturned at a later stage.
As always, it is advisable that you seek guidance and assistance from a competent employment law professional.



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