Many different actions by your employ… 3. 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. How to pay and renew your vehicle license online? 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. This behaviour is unprofessional and unethical, falling short of regular standards in the typical workplace. There are potentially five fair reasons for dismissal: conduct, capability, redundancy, some other substantial reason, or a reason in statue. A dismissal is when an employer ends an employee's contract. LRA Section 189A (13) applications: is the court guardian or nanny? The greater the potential consequences for the employee, the greater the obligation on the employer to show the investigation and disciplinary process was reasonable. - "However, unlike previous judgments, the court focused on the fact that the employee had 30 years' service and a clean disciplinary record. The circumstances of the matter is not always sufficient. Introduction (1) This code of good practice deals with some of the key aspects of dismissal for reasons related to conduct and capacity. There are potentially five fair reasons for dismissal: conduct, capability, redundancy, some other substantial reason, or a reason in statue. The answer to the question is YES! 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 also likely that less grave insubordination may not warrant dismissal if it is the employee’s first offence. Automotive aftermarket shake-up – The Competition Commission’s final Automotive Aftermarket Guidelines, COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”) audit pack, Considerations for the digital economy – Insight from UNCTAD. The dismissal was therefore unfair. The guideline in the legislation is also contained in the Code of Good Business Practice of the Labour Relations Act. The main Offences against military law in the United Kingdom are set out in the Armed Forces Act 2006.. If the lies are so serious as to breach the implied duty of trust and confidence between the you and your employer, you can be dismissed. The employer got it right in the case of Francis vs The Clicks Organisation (2010, 3 BALR 325). Comments by Nicolene Erasmus 1. Heading: Disciplinary Procedures - Dismissal; Monday, May 18, 2020 - 4:49pm. However, in CEPPWAWU obo Mudau vs Super Group Supply Chain Partners (2009, 2 BALR 123) a shop steward was dismissed for, amongst other things, swearing at supervisors. Subsequently the superintendent of the police also arrived. After the meeting - or appeal if there is one - decide whether to give the employee a further chance to improve, or dismiss them. If it goes to a Tribunal it could drag on for months. The Code of Good Practice: Dismissal, gives as examples of offences that may justify dismissal at first instance gross dishonesty, wilful damage to the employer’s property, physical assault on the employer, a colleague or a customer and gross insubordination. Whereas I see extenuating circumstances more narrowly, as only those emanating directly from the relevant incident - as opposed to general circumstances such as length of service that have no bearing on the merits of the misconduct. To find out more see our Privacy Policy. The above decisions tell us that it is important for employers:Â. BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. It is an unfortunate fact of being a manager that at some point in your career you will most likely have to deal with a situation involving dismissing an employee. You should seek advice if you have been dismissed, and are unsure whether or not you might be entitled to bring a claim. This is because it could make an employment relationship intolerable because it damages your ability to trust the employee. An employment relationship comes into existence when one person (“employee”) assists or places his/her services at the use and control of another person (“employer”) in exchange for compensation (for example, money or something else). Instead his behaviour amounted to insubordination which should have been dealt with via proper disciplinary measures. When you choose us, you will be joining an exceptional family of lawyers. For example, in the case of Sacawu VS OK Bazaars Kimberley (1998, 7 BALR 887) the CCMA found that the dismissed employees had committed serious offences by withdrawing cash from their tills contrary to company rules. Each case is unique, and departures from the norms established by this Code may be justified in proper circumstances. A second distinction is between those offences that can be dealt with by a Commanding Officer in a summary hearing, and those that can only be heard by the Court Martial I see mitigating circumstances as any circumstances that might reduce the seriousness of the offence whether such circumstances emanate directly from the actual incident or not. Other examples of serious misconduct include theft, fraud and assault. An employer has the right to fire an employee for lying on a job application or CV in certain circumstances. Gross insubordination committed in the presence of third parties will most likely justify dismissal. To watch a preview of our CORONA VIDEO RESPONSE KIT please go to. my husband said he got a 2:2 degree when he actually attained - Answered by a verified Solicitor . At first, the employee demanded that the police be present. A section 10 is where the court finds the offence proven however dismiss the matter pursuant to section 10 of the Crimes (Sentencing & Procedure) Act 1999. The arbitrator found that the subordinate’s behaviour did not amount to provocation at all. Gross insubordination committed in the presence of third parties will most likely justify dismissal. Click on the link you’d like to find out more about Werksmans expertise in the Labour & Employment sector. However if the employee is unable to attend work for a significant period because they are convicted of a serious offence and imprisoned, then the contract of employment may be brought to an end by the operation of law due to frustration. It is intentionally general. Go to: www.labourlawadvice.co.za. In New South Wales, if a person pleads guilty or is found guilty, they can request that the Court deal with the matter by way of section 10. Such an order can be made with or without conditions.The term ‘section 10’ actually refers to The Court can consider section 10 for a variety of Criminal Offences. A: Most people are guilty of telling a white lie at some stage of their life. This website uses cookies to remember you and improve your experience. This is in order to establish whether the alleged act constituted provocation or not, whether the provocation was significant enough to be pertinent and whether the seriousness of the offence and/or aggravating circumstances outweigh the extenuating circumstances; and. If the offence is sufficiently gross and overt, to merit instant dismissal, you should be able to get your disciplinary hearing and appeal out of the way within two to three weeks (although speed should not override the need for it to be fair). We use cookies to give you the best possible experience on our website. A dismissal without prejudice is the dismissal of a lawsuit but allowing the lawsuit to be refiled or reinstated at a later date. Dismissal for gross misconduct does not attract notice pay and a gross misconduct dismissal can have huge consequences for an employee, particularly in certain professions. Does assaulting a subordinate constitute a dismissal offence? Collins Concise Dictionary defines ‘extenuating circumstances’ as circumstances that cause an offence or fault to appear less serious or to mitigate or weaken. Fair reasons for dismissal 1.A dismissal is unfair if: ... 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. By continuing to use this site you consent to the use of cookies on your device as described in our cookie policy unless you have disabled them. This was insubordinate in and of itself. The Code of Good Practice: Dismissal. If it does, employers need to consider whether they genuinely and reasonably believed that the individual was in fact guilty of the offence in question before deciding whether or not to dismiss. To keep themselves constantly updated with case law decisions that can effect the fairness of their disciplinary decisions. Reddy then referred a dispute to the CCMA. It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. 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. Now I have been off sick longer than 5 days so I require a sick note from GP and it may say something different (I don't know, maybe if I explain to the GP). It must af… With reference to the previous findings it is clear that an employee can be dismissed for a first offence if the employee has committed as serious offence. The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. Therefore, the dismissal is due to operational requirements and not due to any fault or misconduct for which the employee himself/herself is responsible. Theft is regarded by the labour courts as one of the most serious forms of disciplinary offence, normally justifying dismissal first instance, regardless of the value of the property involved, the employee’s length of service, the absence of prior warnings, or whether the employee subsequently returned the property. We are often asked whether an employer may dismiss an employee on a first offence. Usually, the terms and conditions of that employment relationship are contained in a contract of employment. It remains a risky proposition to dismiss an employee for a first offence where the misconduct is not obviously of the most serious kind, and this decision should not be seen as legitimising dismissals for more minor acts of misconduct. Warn them that dismissal is now possible. 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. © 2020 Werksmans Attorneys, All rights reserved. Finally, whether or not an employee has recourse to unfair dismissal protections, they can still pursue a wrongful dismissal claim (where an employer, when dismissing an employee, breaches one or more of the terms on an employee's contract of employment) if a summary dismissal was not justified, claiming for any pay which they would have received had they been allowed to work out their notice. Gross misconduct can include acts such as theft, physical violence, gross negligence and serious insubordination. For example, the Code requires the employer to consider the gravity of the misconduct, the employee’s past record, length of service and personal circumstances.  Case law has added to the factors that could or should be considered including factors such as the seniority of the employee, aggravating circumstances, provocation and other extenuating circumstances. 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.  Â, An example of extenuating circumstances based on my definition is provocation. When is insubordination serious enough to warrant dismissal? The employer's case in the Labour Appeal Court was that the sanction of dismissal was appropriate for the misconduct of which the employee was guilty. The offences fall into two main categories, discipline offences and criminal conduct offences. Is lying about why you are sick a sackable offence? Dismissal For A First Offence. It usually means the same as being sacked or fired. 8. It is also likely that less grave insubordination may not warrant dismissal if it is the employee’s first offence. Our investment in training and development of our team is insurmountable. The arbitrator found that he had been provoked into this behaviour because his supervisor had used an obscene term while addressing the shop steward. Rather, it confirmed that a dismissal can be fair where the first misconduct offence is not ‘gross’, provided all the circumstances justify dismissal. Is lying on an application form always a sackable offence? Click on the link you’d like to find out more about Werksmans expertise in the Labour & Employment sector. Don’t count on it! Banking on a resignation with immediate effect? If an employee is convicted of a criminal offence occurring outside work, a dismissal is only likely to be fair if that criminal offence has some material impact on the employee’s ability or suitability to do their job, or affects their acceptability to other employees to a material extent. We focus on people. For … What documents do I need to register my uFiling account? Importantly, a criminal charge or conviction does not, of itself, usually justify unfair dismissal – or even disciplinary action itself. Upon the arrival of the police, the employee raised his voice and shouted at the municipal manager and insisted that he be allowed to download documents before handing it over. 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. 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. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. The chairperson found that Reddy’s dishonesty had inevitably impacted negatively upon the trust relationship and that dismissal was justified. When she was fired for this act she told the CCMA that she had been provoked by his refusal to stop chewing gum and by his attitude. What is a dismissal? If the lies amount to gross misconduct you can be dismissed without notice. In this case Francis, a manager told a subordinate to stop chewing gum. Dismissal For A First Offence It is an unfortunate fact of being a manager that at some point in your career you will most likely have to deal with a situation involving dismissing an employee. Dismissal is when your employer ends your employment - reasons you can be dismissed, unfair and constructive dismissal and what to do if you're dismissed How To Improve Your Focus and Limit Distractions, Invitation to our online workshop: Restoring Your Workplace Effectiveness, World Knowledge Olympiad: Grade 8 to Grade 12 Learners, President Gives An Update On The COVID-19 Vaccine, COVID-19 Corona Virus South African Resource Portal, the harm or potential harm to the victim of the assault;Â, the potential disruption of workplace harmony;Â, the potential for the employer to be sued for vicarious liability by the assault victim;Â, the loss in working time due the need for an assaulted employee to to take sick leave, andÂ, the loss of business if the victim of the assault is a client.Â. There are also a limited number of situations where dismissal will be unfair even if you do not have two years’ service, e.g. Conduct this severe destroys the relationship between employer and employee and warrants instant dismissal (also known as ‘summary dismissal’)—without notice and without pay in … Where an employee has been arrested for, or has been charged or convicted with a criminal offence, an important issue is whether the alleged offence/conviction directly affects their work. Fighting or assault. Gross misconduct therefore warrants dismissal without notice, or pay in lieu of notice, for a first offence – as long as you follow a fair procedure. The superior’s instructions were reasonable and lawful and the conduct of the employee absolutely undermined the authority of his employer over him, The court confirmed that dismissal was an appropriate sanction. if you are dismissed for blowing the whistle. In Ndwanya v South African Local Government Bargaining Council and Others (JR853/2011) [2013] ZALCJHB 2 (7 January 2013) the employee (a legal officer at the Polokwane Local Municipality) refused to hand over a laptop belonging to the municipality after being asked to do so by his superior, a municipal manager. 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. If you have two years service and are dismissed, your employer must follow an appropriate dismissal procedure. Lying is a form of dishonesty and depending on the circumstances may be serious enough to warrant dismissal. UK Employment Law. Under section 10 Crimes (Sentencing Procedure) Act criminal courts in NSW have discretion, either upon a plea of guilty or a finding of guilt, to dismiss a charge without recording a conviction. However, if an employee is insubordinate to a superior in the presence of members of the public and/or other employees this will be an aggravating factor which may indicate that dismissal is an appropriate sanction. The court will ofte… He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Reasons for fair dismissal. Back to top. To deal with all alleged acts of misconduct coolly, calmly and without biting the offending employee; To ensure that their managers are trained never to speak abusively to employees;Â, To give very careful and reasoned consideration to allegations of provocation by employees accused of misconduct.

is lying a dismissal offence

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