The term “Fair Reason” is sometimes substituted with substantial fairness.
Paragraph 2(1) states that:
“Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty.” This must be read in context in that Schedule 8 is the Code of Good Practice: Dismissals, therefore dealing only with dismissals and not unfair labour practice. It is submitted that fair reason or substantial fairness should not only be applied in dismissal cases but in all disciplinary matters.
There is somewhat of a contradiction between:
Paragraph 3(4) of Schedule 8 is the Code of Good Practice: Dismissals, stating: “Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.”
And
Paragraph 1(3) of Schedule 8 is the Code of Good Practice: Dismissals, stating: “The key principle in this Code is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.”
Often, paragraph 1(3) emphasising the right of employers to ensure the efficient operation of their business is downplayed in arbitrations and more emphasis is placed on paragraph 3(4) protecting the employee from being dismissed for a less serious first offence.
When dealing with serious offences like fraud, theft of company property, violence, deliberate damages to council property and the like the fairness of dismissal as sanction should not be challenged. When dealing with minor first-time offences like coming late for 5 minutes, it should not be in dispute that the progressive discipline route should then be followed. See the publication on How To Deal With Less Serious Workplace Transgression in this regard.
There are no hard rules on when dismissal will be appropriate for less serious offences. In Rubric Consulting (Pty) Limited v Dixon and others (JR 1972/14) LC (handed down 4 May 2016) and in IDC of South Africa Limited v Tracey Lucille Roscher and others (JR 2946/2010, J 494/13) [2016] ZALCJHB 292 (handed down on 2 August 2016) it was held that when determining the substantive fairness of a dismissal each case must be determined on its own merits.
As each Employee, despite seniority, has a duty to discharge his/her scope of work as expected and contracted for. The Court in Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) [2017] ZALAC 54 (handed down on 19 September 2017) laid down steps for an inquiry into a breach of a rule and held that in cases of breach of a rule, Commissioners must consider the following:
- a) Whether there was a rule breached;
- b) The nature and importance of the rule breached;
- c) Whether the Employee had knowledge of the rule or was expected to have such knowledge;
- d) Whether the rule had been consistently applied;
- e) Whether dismissal was an appropriate sanction.
Trust and the future employment relationship was discussed in Department of Home Affairs and another v Ndlovu and others (DA 11/2012) [2014] ZALAC 11; [2014] 9 BLLR 851 (LAC); (2014) 35 ILJ 3340 (LAC) (handed down on 27 March 2014) and the LAC ruled that in order to prove that the sanction of dismissal was appropriate, the Employer needs to present evidence to prove breakdown in the employment relationship. But the LAC went further and ruled that such evidence is not necessary where the breakdown is apparent or obvious from the nature of the offence and or circumstances.
In Sidumo, at paragraph 78, this test was stated as:
(a) “take into account the totality of circumstances”;
(b) “consider the importance of the rule that had been breached”;
(c) “consider the reason the Employer imposed the sanction of dismissal, as he or she must take into account the basis of the Employee’s challenge to the dismissal”;
(d) consider “the harm caused by the Employee’s conduct”;
(e) consider “whether additional training and instruction may result in the Employee not repeating the misconduct”,
(f) consider “the effect of dismissal on the Employee”;
(g) consider the Employee’s service record.”
