Often as a Chairperson in a disciplinary hearing or witness at an Arbitration, we are to consider the factors highlighted in the Sidumo v Rustenburg Platinum Mines case. Below are some of my own personal thoughts on the matter and how I believe it should be given thought.

The principles outlined by the Sidumo vs. Rustenburg Platinum Mines Ltd. (2007) 28 ILJ 2405 (CC) which are as follow:

The importance of the rule that has been breached:

The question to ask here is “why is this rule so important and what could happen if an employee breaches this rule?” People need to remember that even the most arbitrary rule, often is that of great importance.

Consider the importance of not sleeping on duty. In cases of office or admin staff, the only real importance would be that work might not be done as quick as the employer may want it, however, in cases of armed security, the importance could be the difference between life and death. A security officer that is sleeping while on duty, not only is not doing his/ her primary job, but he/ she is also placing his/ her own life in danger as, intruders may potentially pull a gun on the officer and shoot him/ her, just to make their job of stealing a bit easier.

The reason why the Chairperson imposed the sanction of dismissal:

The person considering whether or not the sanction imposed against the employee was substantively fair must consider the merits of the case as well as the aggravating and mitigating circumstances. The trust relationship and possibility of a future working relationship forms the cornerstone of the employment relationship and should this be breached due to the employee’s actions or behaviour, the possibility of any other sanction but dismissal becomes highly unpractical.

The company’s disciplinary code as well as previous precedent must also be considered to determine the appropriate sanction.

The harm caused by the employee’s conduct:

The Chairperson or arbitrator needs to consider the following:

  1. Financial damages
  2. Reputational damages
  3. Trust broken
  4. Production retardation
  5. Emotional distress on fellow employees

Real financial and reputational damage is not a requirement for the matter to be viewed in a serious light, however, the possibility must be real and quantifiable, and had it not been for another person’s intervention, the damages would have surely occurred.

The effect of dismissal on the employee;

The person must consider what dismissal and unemployment would do not only to the employee but also the people dependant on him or her. This is often a very strong mitigating consideration, however, in certain acts of misconduct, this is not strong enough to warrant any other sanction than dismissal. Examples would be theft, assault and gross dishonesty amongst others.

Whether the employee disputed his conduct and whether he behaved inappropriately or dishonestly in doing so:

Consider whether or not the employee disputed his/ her misconduct, and if so, whether he/ she acted inappropriately or dishonestly in doing so. This could either be aggravating or mitigating, if the employee admits his/ her wrong-doing, the process of rehabilitation can commence as people who admit their mistakes are more unlikely to repeat same than those who do not.

On the same side, if the employee places blame on everybody else but himself/ herself, this would act against him/ her as he/ she is then more likely to repeat the offence as no real remorse is shown for his/ her actions.

Whether additional training and instruction may result in the employee not repeating the misconduct:

One needs to consider the possibility of further training and/ or instruction and whether or not it would prevent the employee from repeating the offence. This is often possible, however, in certain acts it will not be applicable for example theft or assault as they are seen as “deal breaker” offences and holds no bearing on the employee’s ability to do his/ her job. These ae also not offences that one can be training on as one is born with the inherent ability to know that fighting and stealing is wrong and it should not be done.

Whether progressive discipline was applied and if not, whether progressive discipline may be effective:

We consider how long the employee has been employed at the company as well as past warnings. This would give us a good indication as to whether or not this is a good employee and whether or not he/ she should be given another chance.

In some cases, people make (big) mistakes which is seen as very serious, however, they have been with the company for a long time and has been exemplary until this instance, thus they should perhaps be given another chance to rectify their actions

Whether the misconduct is serious and makes a continued employment relationship intolerable;

We consider the trust relationship and whether or not it can be repaired. In instances where the trust can be repaired, the possibility of future working relationship remains possible, however, should it be broken to the extent that it cannot be fixed, the possibility of continued relationship becomes unlikely.

Whether the employer has applied the sanction of dismissal consistently in the past and between employees who participate in the same misconduct

And lastly we consider previous sanctions for similar offences. It is a requirement of Schedule 8, that the employer be consistent in the application of discipline.

At the end of the day the person determining whether the sanction is substantively fair, needs to weigh up all the above as well as apply a basic sense of fairness. With time and experience, this becomes easier to determine.

If you can honestly answer ‘if it was me in that position and my employer dismissed me based on these merits, would I be angry or feel unfairly treated?”

Please do not hesitate to contact us, should you need assistance or advice regarding the above.