How do you determine a fair sanction? Dismissal as appropriate sanction in cases of dismissal for (mis)conduct

Abstract

Every employee in South Africa has the rights not to be dismissed unfairly. The Labour Relations Act 66 of 1995 provides that an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. However, the employer must also follow a fair procedure prior to the dismissal. The Code of Good Practice: Unfair Dismissal (schedule 8 to the Act) provides that the question whether a reason for dismissal is fair or not, is determined by the facts of each case and the appropriateness of dismissal as a penalty (in particular item 7(b)(iv)). However, it is not easy to determine whether dismissal is an appropriate remedy in a particular case. This article considers this question without reference to procedural fairness. The case of Edcon Ltd v Pillemer NO (Reddy) emphasised that an employer must submit evidence to support the contention that dismissal was indeed the appropriate sanction. This would require evidence, for example, that the trust relationship between the employer and employee had broken down. The employer must therefore be able to show that the employee is guilty of misconduct and that the nature and impact thereof are such that dismissal is the appropriate remedy.  This article considers some issues in view of this consideration, namely: i) The onus of proof in dismissal disputes; ii) when dismissal could be an appropriate sanction; iii) the final decision regarding whether or not dismissal was fair (ie whether it was in fact the appropriate sanction); and iv) how to approach the decision whether to impose dismissal as sanction or not.   Each of these questions is discussed with reference to principles already established in case law.