Misconduct

Dismissal for misconduct relates to the transgression of the employer’s workplace rules and standards and are regulated by the Code of Good Practice:

Dismissals Schedule 8 issued in terms of the Labour Relations Act and can include dismissal for amongst other:

• Insubordination
• Theft
• Absenteeism
• Assault
• Drunk on duty
• Time keeping offences
• Insolence

Misconduct dismissal must be both procedurally and substantively fair and disputes about the fairness of the dismissal must be referred to the CCMA or relevant Bargaining Council within 30 days of the date of dismissal.

The employer will have to prove that:

1. There was a rule/standard in the work place against the conduct of the employee;
2. Whether the rule/standard was valid;
3. The employee was aware or could reasonably have been  expected to be aware of the rule/standard;
4. The employee transgressed the rule or standard;
5. The rule was consistently applied in the workplace.

Further to the above the employer will have to prove that he applied progressive discipline and that dismissal was indeed the appropriate sanction for the employee’s transgression of the workplace rule or standard.

The employee’s dismissal must be effective in accordance with a fair procedure, which entails a fair and proper hearing at which the employee is afforded the opportunity to state his case.  Please look out for future newsletters regarding the right to a proper hearing and what constitutes a procedurally fair disciplinary hearing.

You could be entitled to up to 12 months compensation or reinstatement should the CCMA or relevant bargaining council find that you dismissal for misconduct was unfair.  Contact us today to assist you.

For Further Information, Please See:

• Automatic Unfair Dismissal
• Constructive Dismissal
• Poor Work Performance
• Incapacity / Injury Related
• Misconduct
• Forms of Dismissal