Misconduct is a category in terms of the LRA which may a lawful reason to dismiss an employee. Misconduct refers to the actions, conduct and or behaviour of an employee which is improper, unacceptable and/or not in line with the Employers expectations and standards.
Examples of misconduct
** There is not an exhaustive list and each case must be determined on its own merits **
Misconduct can include any of these examples:
- Wilful damage to the property of the employer,
- Wilful endangering of the safety of others
- Physical assault on the employer, a fellow employee, client or customer
Rights of the employee
An employee must be informed of their rights in the event that they will be charged with misconduct. Some of these rights include:
- To know what they have been accused of doing/not doing
- To be informed of their rights of representation
- Adequate time to prepare a defense
- A fair hearing
What does NOT constitute misconduct?
An employee may not be charged with misconduct for:
- Participating in a protected strike
- Poor performance at their job
- Being unable to perform their job due to illness
- The employer’s operational requirements
5 factors to be considered for a guilty finding
Whether an employee contravened a rule in the workplace;
If so, whether the rule was valid or reasonable;
Whether the employee was aware of the rule;
Whether the employer consistently applied the rule;
Whether dismissal will be an appropriate sanction in the circumstances.
When deciding whether or not to impose the penalty of dismissal, the employer should, in addition to the gravity of the misconduct, consider factors such as:
- the employee's circumstances:
- length of service,
- previous disciplinary record and
- personal circumstances
- the nature of the job; and
- the circumstances of the infringement itself.
If an employee’s behaviour is deemed to constitute misconduct it may not be enough to dismiss the employee. The degree of misconduct must be measured, and a different sanction might be appropriate.
What are the risks of getting it wrong?
Employers face the risk of judgment being made against them should a dismissal for misconduct be substantively and/or procedurally unfair. It is therefore important for employers to ensure that these processes are carried out lawfully.
Employers can be pro-active by ensuring they have a code of conduct which clearly defines misconduct, this eliminates the risk that a behaviour may not be deemed as misconduct or a serious offence. Employers can further make provision for a disciplinary policy to regulate a fair procedure.
How can we help Employers?
- Rigorous recruitment processes
- Facilitating disciplinary processes (including chairing of disciplinary hearings)
- Best practice employment agreements
- Best practice policies and procedures
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.