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Employers often find themselves in the challenging position of deciding on the appropriate sanction in instances of misconduct. While it is well established that an employer must consider an employee’s mitigating circumstances, one of the most difficult factors to take into account is an employee’s appreciable length of service.

In all instances of misconduct, employers have multiple disciplinary measures at their disposal. However, these measures must be applied in proportion to the gravity of the misconduct, and in some cases, dismissal will be the only appropriate sanction.

In Toyota South Africa Motors (Pty) Ltd v Radebe and Others (DA2/99) [1999] ZALAC 42 (3 December 1999), Zondo AJP posed the following scenario in his judgment:

“If an employee is guilty of the most serious misconduct and he has been in the employment of his employer for a short while, would the commissioner find the dismissal of such employee in such a case unfair on the basis that dismissal was not the only sanction available to the employer or would he find the dismissal unfair because the misconduct is the most serious one can think of? If the same employee had a long service such as thirteen years of service, but he had committed the most serious misconduct imaginable, and the employer dismissed such employee, would the commissioner have found the dismissal unfair on the basis that dismissal was not the only sanction available to the employer or would he say the length of service renders the dismissal unfair even if the misconduct was the most serious one could think of?”

This case involved a supervisor with 13 years of service and a clean disciplinary record crashing a leased company car, abandoning it with the keys in the ignition, and falsely reporting to management and the police that the vehicle had been hijacked. After he was dismissed for fraud and gross dishonesty, the Commission for Conciliation, Mediation and Arbitration (CCMA) found the dismissal too harsh based on his length of service and clean record, and ordered reinstatement. The Labour Appeal Court, however, held that dishonesty is serious and breaks down the trust on which the relationship is founded, and that factors such as long service cannot save the employment relationship in such circumstances.

Employers are often tasked with answering the very same question posed by Judge Zondo, but it is seldom given enough thought when deciding on an appropriate sanction.

Length of Service as a Mitigating Factor

The Code of Good Practice: Dismissal provides guidance on deciding on a fair sanction in disciplinary proceedings, and essentially requires employers to conduct a second inquiry in assessing the proportionality between the misconduct and the sanction, considering mitigating factors such as the employee’s personal circumstances, disciplinary record, attitude, remorse, and length of service.

Length of service as a relevant factor was also confirmed in the landmark case of Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), yet there is no fixed rule on how much weight it should carry. This places an onerous burden on employers and has been debated for some time, which makes it necessary to first determine the gravity of the misconduct.

The Limits of Long Service

In Absa Bank v CCMA and others (JR 1619/13) [2015] ZALCJHB 286, it was held that there are certain acts of misconduct which are of such a serious nature that long service cannot protect an employee from the sanction of dismissal. The Court further held that the employee’s long service was of no relevance due to the gravity of the dishonesty which the employee had committed in this case.

Similarly, in NUMSA obo Davids / Bosal Africa (Pty) Ltd [1999] 11 BALR 1327 (IMSSA), a crane driver was dismissed for reporting for work under the influence of alcohol with a blood alcohol reading of 0.15%. In addition to this, he had operated a crane for approximately three hours before being observed to be under the influence. The Commissioner was tasked with determining whether the sanction of dismissal was appropriate in the circumstances, considering that the crane driver had 19 years of service coupled with a clean disciplinary record. In considering the proportionality between the misconduct and the sanction of dismissal, the Commissioner placed intense focus on the gravity of the misconduct. It was found that the working environment in which the crane driver operated was inherently dangerous and that the gravity of the misconduct overshadowed his length of service and unblemished record, which led to the Commissioner’s award that the sanction of dismissal was appropriate in the circumstances.

While length of service can be regarded as a mitigating factor in determining a sanction, it cannot be used as a shield. Serious acts of misconduct where length of service is unlikely to carry much weight include gross dishonesty, theft, sexual harassment, assault and/or vandalism of the employer’s property.

Practical Pointers for Employers

When dealing with cases of serious misconduct, there are certain steps that may guide employers on the correct approach to the situation:

• Ensure that policies and procedures are implemented to provide guidance on the various forms of misconduct ranging from serious to very serious misconduct.
• When misconduct is committed, determine its gravity.
• Determine whether the misconduct is of such a nature that it would render a continued relationship intolerable.
• Assess whether the gravity of the misconduct outweighs the employee’s mitigating circumstances. If so, dismissal will generally be deemed the appropriate sanction.

While consideration must be given to the gravity of the misconduct and to the employee’s mitigating factors, length of service will not always come to the aid of an employee guilty of serious misconduct. It must also be noted that aggravating and mitigating circumstances should be balanced on the whole and that each factor should not be considered in isolation. It is critically important that an employer engages the services of experts in the labour law field to ensure that disciplinary sanctions are proportionately applied in cases of misconduct.

Written by Deon Gelderblom