Conduct must be serious enough to merit dismissal

Grim and grimmer – but who’s listening?
31/10/2019

Conduct must be serious enough to merit dismissal

In deciding if a dismissal is fair, a number of factors have to be considered in terms of Item 7(b)(iv) of the Code of Good Practice: Dismissal (the Code), writes Ivan Israelstam, CEO of Labour Law Management Consulting in a report on the Polity site. He writes that one of these factors is whether dismissal was the appropriate sanction in the particular circumstances. Item 3(4) of the Code says that dismissal is only appropriate for those serious offences that make the ‘continued employment relationship intolerable’. Israelstam writes that the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. He adds that this is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness. He writes that another type of justification for dismissal is where the conduct goes against the basic sensibilities of a society. In the case of CEPPWAWU obo Evans vs Poly Oak (2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. Israelstam notes that due largely to SA’s history the offence of racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did perpetrate the offence and that the act itself was serious enough to merit dismissal. Also, where the offending employee argues mitigating circumstances the employer must give consideration thereto.

Full report on the Polity site

Do NOT follow this link or you will be banned from the site!