Gross insubordination committed in the presence of third parties will most likely justify dismissal. The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. Go to: www.labourlawadvice.co.za. if you are dismissed for blowing the whistle. The Code of Good Practice: Dismissal. Collins Concise Dictionary defines ‘extenuating circumstances’ as circumstances that cause an offence or fault to appear less serious or to mitigate or weaken. Rather, it confirmed that a dismissal can be fair where the first misconduct offence is not ‘gross’, provided all the circumstances justify dismissal. The Commission for Conciliation, Mediation and Arbitration (CCMA) and courts will not always accept allegations of breach of trust as justification for dismissal. When an employer contemplates disciplining an employee it is required by The Code of Good Practice: Dismissal (the Code) found in Schedule 8 of the Labour Relations Act, to consider a number of circumstances before dismissing a guilty employee. This can be disastrous for the employer because section 188(1)(a) of the Labour Relations Act (LRA) makes it clear that the employer cannot fire an employee without good cause.Â, One area where employers struggle with misconduct penalties in general is where provocation is alleged. Many different actions by your employ… However, it will be a matter for the Crown Prosecution Service (CPS) to decide if there is sufficient evidence to pursue a prosecution, in line with the Code of Practice for Crown Prosecutors. Edcon had been inconsistent in dismissing her for the offence in question as, when faced with a similar incident in the past, Edcon had not dismissed the employee concerned. It is also likely that less grave insubordination may not warrant dismissal if it is the employee’s first offence. Gross misconduct can include acts such as theft, physical violence, gross negligence and serious insubordination. Click on the link you’d like to find out more about Werksmans expertise in the Labour & Employment sector. Okay so I was embarrassed about the reason that I was sick, I did not lie about the symptoms or anything, just the cause. It is reported that, when he refused in an insubordinate manner she assaulted him and bit him to the extent that she had blood on her mouth. The employer got it right in the case of Francis vs The Clicks Organisation (2010, 3 BALR 325). If the Court deals with your matter by way of section 10, it means that you avoid a criminal conviction and there will be no further penalty. Reddy then referred a dispute to the CCMA. This behaviour is unprofessional and unethical, falling short of regular standards in the typical workplace. The court held that there could be no doubt that the employee ought to have appreciated that the conduct of challenging his superior in the presence of not only other employees but the police superintendent was disrespectful and unprofessional. In both criminal and labour law, and especially where an assault  or other abusive behaviour has taken place, provocation generally has an important role to play in considering the level of penalty of the offender.Â, As I mentioned in my last article, assault at the workplace is normally seen as serious misconduct because of:Â, Despite this, employers sometimes bungle disciplinary action against alleged culprits, and this is often because of the anger attached to incidents of assault or other unsavoury acts. We are often asked whether an employer may dismiss an employee on a first offence. You should seek advice if you have been dismissed, and are unsure whether or not you might be entitled to bring a claim. - "However, unlike previous judgments, the court focused on the fact that the employee had 30 years' service and a clean disciplinary record. At first, the employee demanded that the police be present. Does assaulting a subordinate constitute a dismissal offence? The offences fall into two main categories, discipline offences and criminal conduct offences. It is also likely that less grave insubordination may not warrant dismissal if it is the employee’s first offence. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. It must af… In this case Francis, a manager told a subordinate to stop chewing gum. The above decisions tell us that it is important for employers:Â. BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. 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