17 December 2021
Employers have the right to progressively discipline employees for work related misconduct and this could lead to a dismissal.
It should be noted that a dismissal will only be upheld by the CCMA, Bargaining Council or Labour Court where the employer followed a procedurally fair disciplinary inquiry as laid down by the Labour Relations Act. Furthermore, the employer must, on a balance of probability prove that it had the right to dismiss the employee, in order to prove substantive fairness of the dismissal.
Therefore, the dismissal should be both procedurally and substantively fair, in order for it to be upheld by the CCMA.
The employer would have to prove the following things, to show that they had the right to dismiss the employees.
- Firstly, the employee must have been aware of the rule that was allegedly broken;
- Secondly, this rule must have been fair and consistently applied throughout the company;
- Thirdly the employer must prove, on a balance of probability, that the employee was guilty of breaking the rule;
- Fourthly the employer must prove that the rule that was broken warranted a dismissal sanction;
- Lastly, the employer took mitigating circumstances into account, and the dismissal was justified after consideration hereof.
Taking the above into consideration, the employer would still not be entitled to dismiss an employee for conduct that has no connection to the employer. A good example of this would be the following – The employer may not typically dismiss an employee who assaults a person who visited the same Pub and Grill as the employee. The investigation process should start with the employer asking the following questions - Was the employee wearing their company uniform at the time of the assault, was he there for a client meeting, is the establishment a customer of the company etc.
Thus, regardless of the fact that the alleged misconduct occurred outside the workplace and outside working hours, there could still be a connection to the work relationship. Should there be a connection between the employee’s conduct and the company, then the employer may, in certain circumstances depending on the merits of the case, have the right to discipline the employee.
In the case of Saal vs De Beers Consolidated Ltd (2000, 2 BALR 171), it was alleged that the employee had raped and assaulted a female at the mine village and the employee was subsequently dismissed. The commissioner agreed that the employee was guilty of assault, although the rape was not proven at the CCMA.
The employee claimed that his dismissal was unfair on the following grounds:
- A criminal case had been laid against him, the alleged assault took place outside the workplace and outside normal working hours.
The CCMA decided that the criminal case had no influence on the matter before them and that the employee’s misconduct still fell under the employer’s jurisdiction because of the following: -
The employment relationship and company itself had been affected by the employees’ actions and that the employer had a direct interest in the wellbeing of the residents of the village. The employee was also aware that even assaulting a non-employee would be in breach of company policy and procedure.
The dismissal was upheld by the CCMA.
Each case that is taken to the CCMA or Bargaining council will potentially have different outcomes because the merits of each case would differ, as well as the different perspectives from different commissioners.
It is extremely important for employers to do a proper investigation when dealing with off-site misconduct, make sure to contact Invictus Group in order to assist and guide you with any complex labour matters you might be facing.
