Was Dismissal The Appropriate Sanction

The Code of Good Practice: Dismissal provides specific guidance. Factors that must be considered are:

• The gravity of the infringement, taking into consideration factors such as the employee’s circumstances, the nature of the job, and the circumstances of the infringement itself; and
• Consistency in taking disciplinary action.

The Gravity Of The Infringement

The code endorses a ‘corrective’ or ‘progressive’ approach [Schedule 8 Item 3(2)] to discipline involving behaviour modification though a serious of graduated disciplinary steps. Minor incidents of misconduct should be dealt with through informal advice and counselling. If the conduct is repeated, the employee may be given warnings [Schedule 8 Item 3(3)] accumulating, preferably, in a final written warning. As a last resort, or if the infringement is sufficiently serious, the employee may be dismissed.

Dismissal is therefore only justified if the reason is fair and in relation to the nature and extent of the employee’s conduct or repeated instances are of a less serious misconduct [Schedule 8 Item 3(3)].

The gravity of the infringement is assessed by taking the employee’s personal circumstances into consideration, the nature of the job, and the circumstances of the infringement. Aggravating factors in deciding whether the reason for dismissal is fair may include:

• Wilfulness on the part of the employee
• Lack of remorse
• Previous valid warnings or a long record of infringements
• The employer having previously bought the seriousness of the relevant infringement to the attention of the employee
• The use of racist epithets and insults

Consistency In Discipline

An employer’s decision to dismiss must be consistent with past practice (historical consistency) and also among employees who participate in the same misconduct (contemporaneous consistency) [Schedule 8 Item 3(6)].