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
earliest 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.
Should you require any assistance with disciplinary enquiries, labour law training or consulting, please contact us at Hartung Associates (info@hartungassociates.biz).
