Misconduct: A fault dismissal

| Friday November 12, 2010 00:00

These are the basic principles of employment law.  Distinguished from retrenchment and incapacity, misconduct is classified a fault dismissal.  This is so, because in this case, the law considers the conduct of an employee to constitute a serious breach of the employment contract.

However, the conduct of an employee is not only the sole factor of determining the fairness of a dismissal for misconduct.  There are relevant factors that the court takes into consideration to determine the fairness of this dismissal.  For the purposes of this article, we shall today address the substantive fairness of the misconduct.  The next article will deal with the procedural fairness thereof.

The International Labour Organisation has formulated guidelines relating to dismissal for misconduct and the courts have summarised  them as follows:

* Is there a rule or standard

* Was the rule or standard breached

* If a rule or standard was contravened, was the rule 

* Valid or reasonable

* Was the employee aware or could the employee have reasonably expected to have been aware of the rule or standard

* Was the rule or standard consistently applied by the employer 

* Is the dismissal an appropriate sanction for the contravention of the rule or standard 

* What is the gravity of the misconduct 

* What are the circumstances of the infringement 

* What is the nature of the job 

* What are the employee's personal circumstances 

* Was the penalty applied consistently

The rationale behind these requirements is that the employer should not only concentrate on the factual question whether the employee has committed the disciplinary offence complained about, but that specific attention should be paid to the question of the appropriate sanction to be imposed.  Greater emphasis is also placed on the aspect of the disciplinary process closely linked to the concept of the progressive discipline.   This is based on the assumption that, although disciplinary measure in certain circumstances is necessary, the aim of a disciplinary system in a workforce should be to correct the behaviour of an employee than simply dismiss them.  Let us now clarify these substantive requirements:

Substantive Requirements

* Does the rule exist?

The existence of the rule will always be identified from sources such as the disciplinary codes or rules of conduct, the written contract of employment, policy or personnel manuals; notices placed on the notice boards and other areas, directives and common law principles of a contract.  For this rule to exist, it must be relevant to the workplace.  In other words, the rule must be relevant to the employers business, its position in the market, the size of the employer and the employers' reputation.

* Was there a contravention of a rule or standard?

To establish this fact, the employer is required to place sufficient facts before the chairperson of the disciplinary hearing by satisfying the tribunal that the employee has in fact contravened the relevant rule. The standard of proof required to prove the facts is on a balance of probabilities. At rimes, it is acceptable that a single instance of misconduct may justify dismissal.  However, in other instances the employer is expected to apply a graduated system of disciplinary measure in an attempt to persuade or educate employees to comply with these standards. 

* Is the rule or standard valid or reasonable?

In general terms, a rule will be valid or reasonable if it is lawful and it can be justified with regard to the need and circumstances of the business.  For example, in the mining industry, certain rules may be justified, which rules might not be appropriate in the fast food industry, e.g. smoking underground may be justified in the mining industry, but inappropriate in an office or factory.  Where the employer has in the past not enforced the rule this does not mean that the rule is invalid and cannot be applied.  Under such circumstances, the employer will be required to clearly indicate to employees that the rule will be applicable from a particular date.   This could be done by means of written notices and appropriate notification to the union.

l Was the employee aware or could reasonably be expected to have been aware of a rule or standard?

A written disciplinary code is the best proof of the existence of any rule that an employee is found guilty of a contravention.  But the disciplinary code must stipulate a specific conduct as a disciplinary transgression, the sanction for the specific conduct and knowledge of the rules through meeting or notice boards.  If an offence is not contained in the disciplinary code, this does not mean that the employee cannot be charged with a particular offence.  Certain offences may be well known and are generally common law offences such as assault, theft, intimidation, insolence, insubordination etc.

* Has the rule or standard been consistently applied by the employer?

It is important for the employer to ensure that when he carries out discipline, the disciplinary process is consistently applied.  There are two types of inconsistencies.

* Historical inconsistency:

This occurs where an employer as a matter of past practice, did not take action against employees for contravening a particular rule.  If the employer enforces this rule without advising the employees that the rule is now enforceable, the employers conduct would be considered unfair in that the non enforceable of the rule in the past has created the impression that the rule is not valid or important.  It is therefore important and appropriate for the employer to give notice that the rule will be enforced and entitle the employee to take necessary action.

Comment : maine@bbi.co.bw