DISMISSAL FOR MISCONDUCT

The labour law provides that every employee has the right not to be unfairly dismissed.  Once the existence of the dismissal is established, the employer must prove that the reason for the dismissal is a fair reason and effected in accordance with a fair procedure and in terms of the law.  If there is a dispute about the fairness of a dismissal, the aggrieved employee has 30 days to refer the matter to the CCMA or the appropriate Bargaining Council.

Dismissal for misconduct

An employer should establish disciplinary rules and acceptable standards of conduct within the business.  In the case of misconduct by an employee, the employer should purse corrective or progressive disciplinary procedures to rectify the situation.  

Serious offences may include:  

• Gross dishonesty,

• Wilful damage to property,

• Wilful endangering of the safety of others,

• Assault and fighting,

• Gross insubordination,

• Insolence,

• Insubordination,

• Sexual harassment,

• Abusive language,

• Intoxication on duty,

• Time related offences,

• Collective absenteeism. 

Guidelines in cases of dismissal for misconduct:

Any person who is determining whether a dismissal for misconduct is unfair in terms of the labour law should consider-

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and  

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.  

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