Mitigatory, Extenuating and Aggravating Circumstances

Jan 13, 2021

The chairperson at a disciplinary hearing, after having heard the evidence from both parties (employer and accused employee), must make a finding on whether the accused employee is guilty as charged or not. If the finding is guilty, the chairperson must weigh up any mitigating, extenuating and aggravating factors in deciding the appropriate recommended disciplinary sanction.

Comparison of the reasons for and the purpose of punishment in criminal and civil law and in employment situations

A brief comparison will show similarities but also differences. These similarities and differences can best be shown as follows:

CRIMINAL LAWLABOUR LAWCIVIL LAW
Deterrent of an individual natureProgressive disciplineCompensatory
Deterrent as a warning to othersDeterrent of an individual naturePreventative
PreventativeDeterrent as a warning to others 
ReformatoryPreventative 
RetributionRetribution 

The reasons for punishment in criminal and labour law matters are clearly similar but the emphasis is different. Criminal law deals only with criminal offences whilst problems in an employment situation may include but also go beyond criminal offences.

The reasons for punishment in criminal and labour matters must be distinguished from the punishment itself although this too may also be similar. Whilst in labour law the emphasis is in the first place on progressive discipline, which is less harsh than punishment at criminal law, the findings in disciplinary hearings may also have harsh consequences.

So, for example in a criminal trial the punishment may, depending on a number of factors, be a prison sentence without the option of a fine, a sentence of imprisonment with the option of a fine, a fine, corrective treatment or simply a warning. The finding of a disciplinary hearing may result in dismissal without notice, dismissal with notice, withholding increases, suspension without pay or a warning.

Sentencing serves a number of purposes at the same time. A sentence of imprisonment in a criminal matter serves as a deterrent to both the person who has been sentenced and to society, whilst dismissal from employment will serve as a deterrent to both the employee and other employees.

The difference between MITIGATORY and EXTENUATING circumstances and MITIGATION OF PUNISHMENT

The Tri-Lingual Legal Dictionary’s translation of the terms into Afrikaans is as follows:

Extenuating circumstances:     “Versagtende omstandighede”

Mitigating circumstances:         “Versagtende omstandighede

Mitigation of punishment:          “Strafversagting”

Aggravating circumstances:     “Verswarende omstandighede”

Whilst the descriptions found in dictionaries use the terms MITIGATING and EXTENUATING as synonyms, in practice MITIGATION usually relates to the person whilst EXTENUATING relates to the misconduct or the crime. The distinction is somewhat academic so all the related facts will have to be considered before a decision can be reached.

All or any of the above factors and/or circumstances must be considered once a person has been found guilty on a charge. Which factors will weigh as mitigating, extenuating or even aggravating, or heavily or not at all will depend upon the circumstances of each case.

The right to advance reasons for lessening the punishment must, however, never be denied. Where necessary the chairperson of the hearing should elicit such reasons of his own accord and take them into account. The problem, however, lies in applying the factors. For example, the financial position of an employee who is paid a very small wage and who removes scrap metal is quite different from that of an employee who is an accountant and who embezzles money. The responsibility and punishment will differ widely.

Mitigating or extenuating circumstances could include

  • Age
  • Health
  • Length of service
  • Position in the company
  • No previous record
  • Financial position
  • Dependants
  • Plea of guilty
  • Remorse
  • Education
  • Restitution
  • Confession

Extenuating circumstances may include the following:

  • Self defence
  • Provocation
  • Necessity
  • Lack of intent
  • Coercion

Aggravating circumstances may include the following

  • Seriousness of the offense
  • Particular relationship of trust an employee may occupy, e.g., an accountant, goods receiving clerk, dispatch clerk, cashier, etc.
  • Prior disciplinary record, for example, previous warnings for similar or related offenses

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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