TOPIC 8: DISMISSAL: MISCONDUCT
Prescribed:
Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester & Others
•
(2018) 39 ILJ 1503 (CC) (racism)
• Schwartz v Sasol Polymers & Others (2017) 38 ILJ 915 (LAC) (dishonesty – corruption)
• Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC)
(dishonesty – CV)
• Campbell Scientific Africa (Pt) Ltd v Simmers & Others 2016 37 ILJ 116 (LAC) (sexual
harassment)
Approach to Misconduct:
Changes brought about by the LRA
•
◦ Misconduct one of three possibly fair reasons for dismissal, like all dismissals must be
procedurally and substantively fair.
• Misconduct takes place with intentional / negligent breach of workplace rules.
◦ These rules show close correlation with basic duties on all employees.
◦ Range from:
▪ Late-coming
▪ Absence without leave
▪ Negligence (in general)
▪ Insubordination
▪ All types of dishonesty (example: theft, fraud, corruption)
▪ Violence
▪ Sexual harassment and the like
• Principles regulating the fairness of dismissal for misconduct in the Code of Good
Practice (Schedule 8: LRA):
◦ Employer may institute disciplinary rules -> mostly in Disciplinary Codes (regulating
rules of conduct, disciplinary process, sanction guidelines)
◦ Rules might be in Collective Agreement / Contract.
◦ Seen as guidelines (except if in contract) -> may deviate with good reason.
◦ Progressive discipline
▪ Not all misconduct warrants dismissal -> example: counselling, warnings, written
warning, final written warnings.
• Long chapter, focus only on:
◦ 7.2 Overview of disciplinary process
◦ 7.4 Substantive fairness
, • NB:
◦ When you read the cases, focus on the part of the judgment dealing with the type of
misconduct in question and whether the decision to dismiss was fair. All these
judgments are 'review judgments' (where the finding of the CCMA is taken on review_
▪ Don't get caught up in the discussions about the test for review and the like.
Overview of Process:
Stages:
A) Incident and investigation
• gathering evidence
B) Possible suspension pending disciplinary enquiry
• If serious -> unfair suspension may be an unfair labour practice)
• Suspension really only done to create room for an unfettered enquiry.
C) If misconduct relatively minor:
• Typically dealt with informally (without disciplinary enquiry)
◦ Example: oral / written warning / counselling
• Even where the employer does not dismiss, may still be challenged as unfair labour
practice
D) If misconduct is serious:
• Typically internal disciplinary enquiry -> in terms of guidelines in employer's Disciplinary
Code - formal discipline:
◦ If finding at enquiry is guilty and employee should be dismissed, some Codes provide
for an internal appeal (this is not a requirement)
◦ Once final decision to dismiss is taken; employee may challenge fairness within 30
days at the CCMA / bargaining council.
▪ Substance and / or procedure may be challenged.
◦ Section 188A -> parties may agree to have the CCMA do an inquiry prior to any
decision to dismiss, which counts as both the internal enquiry and a subsequent
arbitration.
▪ If for example the employee is unhappy with the outcome of the S188A enquiry, the
next stop is the Labour Court on review.
Substantive Fairness:
Substantive fairness required by Section 188(1) of the LRA and means that a dismissal
•
must be for a fair reason such as misconduct
• 5 requirements (must be met) set out by item 7 of the COGP (dismissal):
1. Contravention of rule
2
Prescribed:
Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester & Others
•
(2018) 39 ILJ 1503 (CC) (racism)
• Schwartz v Sasol Polymers & Others (2017) 38 ILJ 915 (LAC) (dishonesty – corruption)
• Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC)
(dishonesty – CV)
• Campbell Scientific Africa (Pt) Ltd v Simmers & Others 2016 37 ILJ 116 (LAC) (sexual
harassment)
Approach to Misconduct:
Changes brought about by the LRA
•
◦ Misconduct one of three possibly fair reasons for dismissal, like all dismissals must be
procedurally and substantively fair.
• Misconduct takes place with intentional / negligent breach of workplace rules.
◦ These rules show close correlation with basic duties on all employees.
◦ Range from:
▪ Late-coming
▪ Absence without leave
▪ Negligence (in general)
▪ Insubordination
▪ All types of dishonesty (example: theft, fraud, corruption)
▪ Violence
▪ Sexual harassment and the like
• Principles regulating the fairness of dismissal for misconduct in the Code of Good
Practice (Schedule 8: LRA):
◦ Employer may institute disciplinary rules -> mostly in Disciplinary Codes (regulating
rules of conduct, disciplinary process, sanction guidelines)
◦ Rules might be in Collective Agreement / Contract.
◦ Seen as guidelines (except if in contract) -> may deviate with good reason.
◦ Progressive discipline
▪ Not all misconduct warrants dismissal -> example: counselling, warnings, written
warning, final written warnings.
• Long chapter, focus only on:
◦ 7.2 Overview of disciplinary process
◦ 7.4 Substantive fairness
, • NB:
◦ When you read the cases, focus on the part of the judgment dealing with the type of
misconduct in question and whether the decision to dismiss was fair. All these
judgments are 'review judgments' (where the finding of the CCMA is taken on review_
▪ Don't get caught up in the discussions about the test for review and the like.
Overview of Process:
Stages:
A) Incident and investigation
• gathering evidence
B) Possible suspension pending disciplinary enquiry
• If serious -> unfair suspension may be an unfair labour practice)
• Suspension really only done to create room for an unfettered enquiry.
C) If misconduct relatively minor:
• Typically dealt with informally (without disciplinary enquiry)
◦ Example: oral / written warning / counselling
• Even where the employer does not dismiss, may still be challenged as unfair labour
practice
D) If misconduct is serious:
• Typically internal disciplinary enquiry -> in terms of guidelines in employer's Disciplinary
Code - formal discipline:
◦ If finding at enquiry is guilty and employee should be dismissed, some Codes provide
for an internal appeal (this is not a requirement)
◦ Once final decision to dismiss is taken; employee may challenge fairness within 30
days at the CCMA / bargaining council.
▪ Substance and / or procedure may be challenged.
◦ Section 188A -> parties may agree to have the CCMA do an inquiry prior to any
decision to dismiss, which counts as both the internal enquiry and a subsequent
arbitration.
▪ If for example the employee is unhappy with the outcome of the S188A enquiry, the
next stop is the Labour Court on review.
Substantive Fairness:
Substantive fairness required by Section 188(1) of the LRA and means that a dismissal
•
must be for a fair reason such as misconduct
• 5 requirements (must be met) set out by item 7 of the COGP (dismissal):
1. Contravention of rule
2
