Mitigating circumstances and dismissal as an appropriate sanction

Jan du Toit

Many employers still find themselves in hot water at the CCMA or in the labour court for failing to give due consideration to circumstances raised in mitigation by employees before deciding on an appropriate sanction. Schedule 8 of the Labour Relations Act indicates that a dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure, in other words the dismissal must be both substantively and procedurally fair in order to avoid having to pay compensation to a dismissed employee.

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. It is therefore clear that in order to prove that a dismissal was for a fair reason, the employer will have to prove that the employee was on the balance of probabilities guilty of the misconduct accused of and that a dismissal was an appropriate sanction. This seems to be straight forward but many employers justify a dismissal based solely on the fact that the employee was found guilty of an act of misconduct. This is clearly contrary to the guidelines of schedule 8. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider circumstances raised in mitigation by the employee and in aggravation by the employer. In order to prove that a sanction of dismissal was appropriate under the circumstances, the employer will have to be able to convince a Commissioner or Judge that the seriousness of the offence outweighed the employee’s circumstances in mitigation.

The Labour Appeal Court in County Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ 1701 (LAC) at 1707 (paragraph 11) [also reported at [1999] JOL 5274 (LAC)], held that it was “not for the arbitrator to determine de novo what would be a fair sanction in the circumstances, but rather to determine whether the sanction imposed by the appellant (employer) was fair”.

In NEHAWU obo Motsoagae / SARS (2010) 19 CCMA 7.1.6 Mr. Motsoagae, a Revenue Admin Officer for SARS, destroyed confiscated cigarettes that were held in the warehouses of the State without the necessary permission. Some of these cigarettes found its way onto the black-market after he allegedly destroyed them and was subsequently charged with theft. The commissioner agreed with the employer that the applicant in this matter, Mr. Motsoagae, was indeed guilty of the offence but still found that the dismissal was substantively unfair. According to the commissioner the respondent in casu did not bother to lead any evidence to show that dismissal had been the appropriate penalty under the circumstances and that it was in any event not known which “aggravating” or “mitigating” factors (if any) might have been taken into consideration before deciding on a dismissal as a suitable sanction.

In a more recent case, Stander v Education Labour Relations Council & others (2010) 19 LC 1.25.1 (reported in Butterworth’s [2011] 4 BLLR 411 LC), a teacher was dismissed after slapping a 17 year old learner. The teacher claimed that he was severely provoked by the learner and could barely remember what happened at the time of the incident. As a result of external pressure the teacher was charged with the assault of a learner and a disciplinary hearing was convened which took years two finalize. The teacher was dismissed for assault with the intention to do grievous bodily harm, without giving him the opportunity to raise circumstances in mitigation before he was dismissed. At the Education Labour Relations Council (Bargaining Council) the respondent called a number of witnesses to testify against the applicant. The applicant testified on his behalf and submitted as further evidence a medical report from his doctor. It was agreed between the parties that there was no need for the applicant to lead an expert witness regarding his medical condition and that the arbitrator would have regard to such medical reports as submitted by the applicant in his consideration of the dispute. This meant that the medical report constituted uncontested evidence.

In his award the commissioner reasoned that “the question is not so much about the guilt, it is whether the employment relationship has been damaged and whatever (sic) the continuation of the relationship can be contemplated.”. The commissioner goes further to say:

“It is common cause that the applicant did slap the learner. He therefore misconducted himself in terms of the rules of the school and the Department of the Education . . . It is not in the public interest to expose learners to this kind of tension and as the Applicant cannot guarantee that he will not repeat the behaviour, there would seem to be no other alternative but to remove the Applicant from the environment, where he will not be subjected to the ill discipline of learners, the bad manners of learners, the problem of the school and the deteriorating standard of respect at school.”

“The headmaster testified that they tried to resolve the matter internally and only reacted when formal complaints were laid. While this is poor management practice and one that should be changed, it does not provide a reason not to deal with assaults in the work place in an appropriate manner.”

The teacher took the award of the commissioner on review and raised several grounds of review. The three main grounds being that the commissioner committed misconduct, gross irregularity and that he exceeded his powers. According to the teacher the arbitration award was unjustifiable because the uncontested evidence, including that of the medical practitioner, was disregarded by the commissioner.

Judge Molahlehi in his evaluation stated that “His (the commissioner’s) inquiry did not go beyond the “bona fide belief” of the employer that the employee had committed misconduct and as a result of that misconduct the employment relationship had to be terminated “because it was intolerable for commercial and public interest”. The commissioner’s approach, in my view, failed to take cognisance of the fact that in addition to determining the commission of the offence a further enquiry that needed to be conducted was whether the dismissal was in the circumstances of this case fair or otherwise.

According to judge Molahleni the commissioner (and employer) should have taken the following circumstances into consideration in determining whether a dismissal was an appropriate sanction:

1. The applicant did not deny the commission of the offence.
2. The applicant accepted that what he did was wrong and subjected himself to further medical assessment and treatment.
3. The offence was as a result of provocative behaviour on the part of the learner which has not been disputed.
4. At the workplace the view was that the relationship had not broken down and that this was a matter which could have been resolved through facilitation. It would appear from the version of the school that disciplinary action was only taken because of pressure from outside the school.

The judge further indicated that it was not clear what the commissioner meant when he said that the applicant could not guarantee that he would not again commit the offence in the future. “The objective facts are that the chances of a repeat by the applicant are remote. The applicant is a person who has dedicated his life to teaching for a period in excess of 30 years. There is no evidence that he had in that period committed a similar offence. He has in a scientific manner identified the cause of his reaction to provocation by the learner on that particular day and has subjected himself to medical treatment which is the only objective basis upon which the commissioner could have determined the possibility of the repeat of the misconduct. The medical report which as indicated above was rejected by the commissioner was also important in the assessment of the repeat of the misconduct. The commissioner in failing in his duty rejected the evidence on the basis that it is only required in criminal proceedings.”

The award was set aside and the matter was to remitted back to the bargaining council for determination by a different commissioner.

Employers are advised to consider circumstances in aggravation and mitigation before deciding on a dismissal as appropriate sanction. In order for a dismissal to be substantively fair; circumstances in aggravation, combined with the seriousness of the offence must outweigh the circumstances the employee raised in mitigation.

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