Mitigating Circumstances and the Appropriate Sanction

“I choose a lazy person to do a hard job, because a lazy person will find an easy way to do it” – Bill Gates

Article by Tumi Ntshekang (Labour Relations Officer)

Introduction

Employees, from time to time, find themselves entangled in acts of misconduct; some of the acts could be because of mistakes and some intentionally committed.  An employee may be guilty of an act of misconduct that may lead to dismissal even when it was his or her first offence.

For an employer to prove that a dismissal was for a fair reason, the employer would have to prove that the employee was, on a balance of probabilities, guilty of the misconduct accused of and that dismissal was the appropriate sanction, under the circumstances.

What are mitigating circumstances?

In the event where an employee is found guilty of misconduct, pursuant to a disciplinary hearing or pleads guilty to the charges of misconduct levelled against them, the chairperson must afford the employee the opportunity to make submissions on mitigating circumstances.

Mitigating factors are led by the employee (or his MISA representative), to alleviate or lighten the sanction; they are factors which are considered by the chairperson to assist the chairperson in making an appropriate sanction to the charges.

The Merriam-Webster dictionary describes the term “mitigating” as “to make something less grievous.” Mitigating circumstances includes, amongst other things, factors such as the employee’s confession, a clean disciplinary record, and the employee’s long service, remorse shown during the disciplinary proceedings, the circumstances of the offence, or the employee’s personal circumstances. These circumstances determine, whether the employee will not repeat the offence in future, i.e. will be rehabilitated; and guides the chairperson to make the appropriate sanction.

What does Legislation and Case Law say about Mitigating Circumstances?

Item 3(3) of schedule 8 of the Code of Good Practice: Dismissal (the Code) of the Labour Relations Act 66 of 1995 (LRA), guides an employer to make use of corrective and progressive discipline for minor offences, and repeated misconduct; whereas “dismissal should be reserved for cases of serious misconduct or repeated offences.”

Item 3(4) of the Code gives an indication of which offences may warrant a dismissal at first offence or at first instance; and provides that “generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”

In Afrox Healthcare Ltd v CCMA & Others (2012) 33 ILJ 1381 (LAC), the court positively affirmed that dismissal for negligence can also be appropriate depending on the circumstances.

Item (3)5 of the Code, provides that “when deciding whether or not to impose a penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances, including length of service, previous disciplinary record and personal circumstances, the nature of the job and the circumstances of the infringement itself.” (Own Emphasis)

However, length of service may not necessarily be deemed as a mitigating factor in each and every instance, in some instances length of service, may very well be considered as an aggravating factor, or not carry much gravity, at all.

The Labour Appeal Court held in the matter of Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) at 344C-F: that although a long period of service of an employee will usually be a mitigating factor where an employee is found guilty of misconduct; certain acts of misconduct which are of such a serious nature that no length of service can save an employee, from dismissal. In this matter, the court further held that length of service in the circumstances of this case was of no relevance and could not provide, and should not have provided, any mitigation for misconduct of such a serious nature as gross dishonesty.

In Stander v Education Labour Relations Council & others (2010) 19 LC 1.25.1 (reported in Butterworth’s [2011] 4 BLLR 411 (LC)), a teacher was dismissed after slapping a 17 year old learner. The teacher claimed that he was severely provoked by the learner and could barely remember what happened at the time of the incident. The teacher was dismissed for assault with the intention to do grievous bodily harm, without giving him the opportunity to raise circumstances in mitigation before he was dismissed. On review, the Labour Court concluded that the commissioner and employer erred, and should have considered the following circumstances in determining whether a dismissal was an appropriate sanction:

• The applicant did not deny the commission of the offence.
• The applicant accepted that what he did was wrong and subjected himself to further medical assessment and treatment.
• The offence was because of provocation by the part of the learner, which was not disputed.

Conclusion

For a sanction of dismissal to be appropriate, the gravity or seriousness of the offence must outweigh the employee’s circumstances in mitigation. Your mitigating circumstances must be considered to determine the appropriate sanction. Bear in mind that there are certain acts of misconduct, which are of a serious nature, that will outweigh your mitigating circumstance and not lesson the sanction to be imposed.

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