Because what is intolerable to an employer might seem tolerable to a judge.
Item 7(b)(iv) of the Code of Good Practice: Dismissal (the Code) provides that, in deciding if a dismissal was fair, a person is to consider a number of factors. 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 “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
- Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
- The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
- Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.
- However, 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. 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.
The parties will thereforeneed to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. This can happen where the victim indicates that he or she will be able to continue working with the culprit.
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. He claimed that he had done so in jest and had not intended to hurt the other person. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal
Due largely to South Africa’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.