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Tony Healy
Many employers are under the mistaken impression that progressive discipline only applies within sub-categories of dismissal.
In other words, if an employee has, for example, a final written warning on file for insubordination, it is only a subsequent act of insubordination that would justify dismissal.
If that employee was then awol for a short period, another final warning/warning could be imposed.
This notion is widespread but flawed. The Labour Relations Act does not sub-categorise acts of misconduct, other than in Schedule 8 when dealing with “incapacity” dismissals.
In the 1992 Industrial Court judgment in the matter between PPWAWU v Mondi Paper Waste, the presiding officer stated that “it would lead to absurdity if only warnings related to (the offence) were taken into account. An accumulation of penalties should be taken into account, not an accumulation only of warnings for similar or related misconduct”.
To ensure clarity on this often complex issue, it is advisable to clearly specify in a disciplinary code that the application of progressive discipline is unrestricted.
In other words, disciplinary sanctions when imposed are, first and foremost, for an act of “misconduct” and such sanction, (normally in the form a warning) is to be taken into consideration in the event that future acts of misconduct arise during the validity period of the earlier warning, whatever the nature may be of such further act of misconduct.
If this were not to be the case, delinquent employees could commit every conceivable act of misconduct at least once every validity period attached to warnings.
The Labour Appeal Court addressed the same issue this year in the matter between National Union of Mineworkers & Mocha v Amcoal Colliery.
This judgment stated that the employees “had already been given a final written warning.
“This means that they had each been warned that they were on the verge of dismissal and that any future transgression could leave (the employer) with little choice but to dismiss them.
“The imposition of any punishment which is lesser than dismissal would have been at odds with logic and the very purpose of punishment.”
That’s not to say, however, that the relatedness of a series of acts of misconduct is to be ignored.
On the contrary, repeated acts of misconduct of a same or similar nature require special attention.
It is more appropriate to address this scenario by treating such relatedness as an aggravating factor prior to determining an appropriate sanction/penalty; more specifically, repeated acts of the same or similar form of misconduct would ordinarily justify a more severe sanction/penalty.
l Tony Healy & Associates will be presenting its 2012 Annual Labour Law conference in Joburg on July 24.
The conference focuses on the many imminent labour law amendments, recent landmark labour law cases and judgments, as well as the new Commission for Conciliation, Mediation and Arbitration Misconduct Arbitration Hearing guidelines. Workplace law is in a significant state of flux with far-reaching legislative amendments around the corner, and the publishing of the misconduct arbitration guidelines.
Case law trends will also be addressed, including recent case law, which gives direction on whether or not a failed breathalyser test proves that an employee is under the influence of alcohol, as well as many other case law trends.
Workplace readers qualify for a 10 percent discount on the fee.
To book, call Jenisha at 011 476 1620 or e-mail: admin@ tonyhealy. co.za
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