Misconduct: the importance of clear and known rules

Sep 1, 2008


The key difference between misconduct and incapacity lies in the fact that the
former involves the breaking of rules applicable to the workplace in either an
intentional or negligent manner. In other words, the employee breaks a rule in
circumstances where he or she could comply, but either refused or failed to do
so. In the case of incapacity, on the other hand, one is dealing with an employee
who’s unable (not unwilling) to do what is expected.

Most employers are probably aware by now that the determination of whether an
employee is guilty of misconduct depends on whether or not the following
questions can be answered affirmatively, i.e., whether: the rule that has allegedly
been broken in fact exists; the employee was aware of the rule, or the rule was so
well known or obvious, that the employee ought to have known about it; the rule
has been applied consistently; the rule is valid or reasonable; and has been
broken by the employee, either deliberately or negligently. If an employee is
dismissed, the dismissal must be an appropriate sanction for breach of the rule.

The rule may come from a number of sources, e.g., the employee’s contract; an
agreement between the employer and a trade union; legislation (e.g., health and
safety rules); it may be a rule that the employer introduced unilaterally (e.g.
operating procedures or a disciplinary code); or it may be found in the common
law. The latter, in essence, includes all legal rules not found in legislation and
covers things such as the employee’s duty to obey lawful instructions, the duty of
good faith and honesty; the duty to cooperate with the employer; and the duty to
do the job with reasonable care and skill.

While there are certain rules that are fairly obvious and, strictly speaking, need
not even be mentioned in disciplinary codes, e.g., the prohibition against theft or
assault, or absence without leave, it is good practice to include all rules
applicable to a workplace in a document of some kind. It doesn’t matter whether
one calls it a disciplinary code, rules of conduct, or something similar – the
important thing is that the rules should be documented to avoid any uncertainty
regarding the existence. In addition, supervisors and line managers should
ensure that the rules are made known to staff, e.g., during induction or team
meetings. This is especially important for those rules that might not be generally
known, because they are peculiar to a particular work environment or job. For
example, in the food processing industry, clean hands are critical, but new
employees might not know this when they first start out. The more obscure the
rule, the greater the need for employees to be informed about it.

Since the decision of the Constitutional Court last year in Sidumo v Rustenburg
Platinum Mines, it has become essential for employers who have dismissed
someone for transgressing a rule to prove to an arbitrator that the rule in question
is valid or reasonable. Dismissing someone for theft or fraud is unlikely to raise
eyebrows. But outside of these, the employer will have to provide some evidence
at arbitration that dismissal was an appropriate response to the breach of the
rule. Take, for example, fighting in the workplace. Not all instances of fighting will
justify dismissal. But if an employer can prove, for example, that given the nature
of its operations, fighting creates a serious safety risk and that it has informed
employees that it would take a very hard line if people engaged in fighting, it
would be able to convince an arbitrator that dismissal of those involved in the
fight was appropriate. Obviously, evidence that one party provoked the fight while
the other was merely defending himself will have to be considered too. The point,
however, is that employers must not assume that arbitrators will necessarily
know why a particular rule is viewed in a serious light – it is imperative that
documentary or verbal evidence should be provided at arbitration to substantiate
the claim. Merely relying on the fact that one’s disciplinary code says that
dismissal will follow may not be sufficient.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.