Durban -There is a Code of Good Practice, outlined by the CCMA, on dismissals and the CCMA has guidelines on misconduct arbitrations.
These CCMA guidelines are based on the principles contained in The Code of Good Practice; Dismissal, as outlined in the Labour Relations Act.
These guidelines are useful indicators as to how arbitrators, in the arbitrations, will rule on substantive fairness or otherwise of an actual dismissal.
Once again, an arbitrator will look as to whether the employee broke a rule or standard regulating conduct in the workplace; whether the rule or standard was valid or reasonable; whether the employee was aware of or could have been reasonably expected to be aware of the rule of standard; whether the employer has been consistent in applying the rule of standard; whether dismissal is the appropriate sanction for contravention of the rule of standard.
The CCMA goes on to describe “it is generally not appropriate to dismiss an employee for a first offence unless the offence is so serious that it makes a continued working relationship intolerable.”
It is important to have a look at the guidelines when actually adjudicating at a disciplinary enquiry.
There are general duties placed upon employees to work, to keep time and to comply with lawful and reasonable instructions. There is also a duty to co-operate, to respect co-employees, not to assault or harass co-employees and not to disrupt the business.
Furthermore, there is a duty not to be dishonest or to undermine the employers business or reputation.
It becomes very easy to show that the employee was aware of the rules if the employee had been provided with a copy of the disciplinary code, or had access to the code through a computer or on notice boards.
The recommendation has always been that each employee would be given a hard copy of the rules and regulations of the employment and would be asked to sit and study these rules and regulations, and even have someone from human resources come and explain it to the employees.
This process would then lead to the employee signing off that he/she has read, understood and agrees to abide by the rules, as contained in the hard copy handed to him or her.
On many occasions, the employee might admit to having contravened the rule but will have a reason as to why it was necessary or why he or she chose not to follow the rule. It is for the employer to show that the breach has created a major problem and the excuses proffered are not valid.
If, however, the employee denies having contravened the rule, the onus lies with the employer to prove, on a balance of probabilities, that the employee broke the rule. Once again, the CCMA guidelines should be referred to.
They state “while it is the employers’ responsibility to determine the rules and standards in the workplace, it is the arbitrators’ role to determine the validity and reasonableness of the rule, as part of the general enquiry into the fairness of the dismissal.
Employers should, therefore, strive to ensure that the rules, which they see to enforce, are valid and reasonable”.
It doesn’t help to have convoluted rules, which are not easy to understand. Although the rule is merely a guideline, it should be simplistically worded and explained to every employee.
It becomes vitally important, in union relationships, to have the shop stewards and the union organisers fully aware of all the internal rules and procedures, as contained in the employers manuals.
The CCMA guidelines also explain that certain instructions do not have to be adhered to.
1) An instruction to perform work in contravention of a safety standard.
2) An instruction to perform work that falls outside the scope of duties that the employee may reasonably be expected to perform.
3) An instruction to seduce clients.
4) An instruction not to give evidence against an employer.
This is coupled with the reasonableness of the rule and some rules might be completely unreasonable, thereby rendering it inappropriate.
Dismissal is not always the appropriate sanction and, in line with progressive discipline, it is recommended that employers would follow a system of warnings, either in writing or orally, before resorting to dismissal.
Obviously, a serious breach of the rules and regulations, leading to a breakdown of the employment relationship, could lead to an instant dismissal after the enquiry.
If the continued relationship is intolerable or there are numerous warnings, this would justify dismissal. Arbitrators do look at the following three issues before determining whether sanction is appropriate. These are:
a) An enquiry into the gravity of the contraventions of the rule;
b) An enquiry into the consistency of the application of the rule and sanction; and
c) An enquiry into factors that may have justified a different sanction.
These factors might lead to an arbitrator agreeing that a dismissal was appropriate in all the circumstances.