Written by: Michelle Naidoo | Partner & Candice Murray | Associate Designate
Appropriate disciplinary sanctions often pivot on the delicate balance between the severity of the misconduct and mitigatory factors. In navigating this landscape, legal frameworks provide guidelines, but a crucial factor often overlooked is the influence of genuine remorse on the determination of appropriate sanctions. Skilled and experienced Chairpersons can strike a balance between these factors, when determining appropriate sanctions to be imposed in misconduct cases.
The legal framework is guided by the Schedule 8 of the Labour Relations Act. In terms of the Code of Good Practice: Dismissal (the “Code”). The Code emphasizing the importance of a progressive disciplinary approach. This approach aims not only to correct behaviour but also to ensure fairness and consistency. Minor infractions may warrant informal correction or warnings whilst serious cases of misconduct may warrant dismissal, even for a first offence.
It is trite that conduct involving dishonesty, endangerment of safety, or gross insubordination warrants dismissal. Furthermore, that any offence that has the consequence of destroying the trust relationship between employer and employee renders continued employment untenable.
Case law has developed these guiding principles. Notable case include:
- Fidelity Cash Management Service v CCMA & Others (LAC), highlights the assessment of the “totality of circumstances.” Factors such as genuine remorse, length of service, and prior disciplinary records are to be weighed in determining appropriate sanctions.
- Autozone v Dispute Resolution Centre of Motor Industry and Others (LAC) held that dishonest conduct carriers operational risks that may be insurmountable, to justify the continuation of the employment relationship.
- Timothy v Nampak Corrugated Containers (Pty) Ltd (LAC) held that genuine remorse, is pivotal to restore trust. In the absence thereof, continued employment is rendered intolerable.
It is important however to draw a distinction between regret and genuine remorse. In Toyota SA Motors (Pty) Ltd v the CCMA & 3 others (LAC) it was held that genuine remorse involves an unconditional acknowledgment of wrongdoing, a plea for forgiveness, and a commitment to not repeat the misconduct. Mere regret or a sense of regret at being caught out does not suffice.
Usually, a plea of guilt is an indication of remorse however it is important to assess whether the plea emanates from regret or genuine remorse.
Ultimately, while legal frameworks provide guidelines and case law provides authority, the evaluation of genuine remorse remains a nuanced factor. Chairpersons are required to exercise a discretion in determining appropriate sanctions based on the application of legal principles, the totality of circumstances that surrounded the commission of the offences, the presence of and weight to be attached to mitigatory factors.
A “one shoe fits all” approach does not apply in determining appropriate disciplinary sanctions.