The Labour Court has confirmed in National Lotteries Commission v Mafonjo [2023] ZALCJHB 184, that suspended dismissal sanctions are not permissible in internal disciplinary hearings.
May a sanction of dismissal be suspended?
When presiding over a disciplinary hearing, a chairperson must follow the prescripts of Schedule 8 of the LRA; the Code of Good Practice: Dismissal (the “Code”).
The Code endorses the principle of “corrective or progressive discipline,” meaning that in cases of misconduct, efforts short of dismissal should be explored before terminating the relationship. This approach is qualified, and where misconduct is serious and of such gravity that it “makes continued employment intolerable,” dismissal may be appropriate even if it is the employee’s first offence.
But what of instances where a chairperson finds the employee guilty of serious misconduct and rules that the employee be ‘dismissed’, but that the dismissal be suspended for a period of time? Such a ruling would effectively order the employer to retain the errant employee, until (and if) the employee re-offends (i.e., commits similar misconduct).
The novel facts in the matter of National Lotteries Commission v Mafonjo (JR 48/2020) [2023] ZALCJHB 184 demonstrate that this approach has no place in our labour law jurisprudence.
After finding the employee guilty of gross dishonesty and breach of contractual obligations, the independent chairperson, appointed by the National Lotteries Commission (the “Commission”), ruled that the employee is dismissed from her employment, but suspended the dismissal sanction for a period of ten years, on condition that the employee was not found guilty of a similar act of misconduct.
Aggrieved by the sanction ruling, the Commission applied to the Labour Court in terms of Section 158(1)(h) of the LRA, for an order that it be set aside and substituted with an order summarily dismissing the employee. The Commission succeeded.
In the reported judgment penned by Sethene AJ, the Court held that the sanction of a suspended sentence, although prevalent in criminal law, is foreign in labour law. There was no provision for a suspended dismissal in the Commission’s disciplinary policy, and there was simply no authority offered by the chairperson supporting its inclusion in internal disciplinary matters.
The learned Judge found that given the seriousness and nature of the misconduct, the employee’s fiduciary responsibility vis-à-vis the Commission, and the Commission’s justifiable lack of confidence in the continued employment of the employee, a sanction lesser than dismissal was not appropriate. The employee’s personal circumstances and years of service did not extricate her from the consequences of her transgressions.
The Labour Court observed that keeping the employee’s dismissal suspended would result in the Commission retaining the employee in its employ for another ten years; an untenable situation noting the impact of the employee’s misconduct on the working relationship. Permitting the sanction ruling to stand would “open the floodgates of anarchy” in the Commission’s workplace.
In the premise, the Court held that the chairperson’s ruling could not stand. The review was accordingly upheld, and the sanction ruling was replaced with one that the employee is dismissed with immediate effect.