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CASE LAW: Disciplining an employee for 'obvious' misconduct can still be unfair! Take a look

by , 19 April 2016
You need discipline in the workplace to ensure a harmonious environment in which everyone can work at their best.

This means that you must maintain a certain level of conduct in the workplace, while swiftly confronting any behaviour that infringes on your rules.

One of the most important areas of conduct is obeying your instructions, provided they're lawful and reasonable of course.

Failure, by an employee, to do this can lead to discipline in which his refusal to obey you amounts to gross insubordination. And depending on the situation, you may even dismiss him.

But there's a curveball! Because a dismissal here can still be unfair, even though he directly refused to obey your reasonable and lawful instruction.

Here's a case law example to explain this in more detail...


Everything you need to know about substantively and procedurally fair disciplinary hearings
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
But not you! Here's why…

In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861), an employee was dismissed for refusing to obey a direct order, which was seen as reasonable and lawful.
What were the facts?
The employee was a tug master who refused to obey an order, by the tug's pilot, to tie up the tug.

The employee was subsequently disciplined for it. And seeing that she already had a final written warning, she was dismissed.
But that wasn't the end of it! The dismissal was found to be unfair!
How could it have been unfair?
It was decided that the employee's refusal to disobey the order was not intentional, but instead it was based on her professional belief that the order was too dangerous. And that if something were to go wrong, she would have been held responsible. 
In other words, the employee had developed a subjective view of the order, which was taken into consideration by the court and deemed reasonable in itself.
What can you learn from this case?

This case clearly shows that disciplining your employees isn't as clear cut as many wish to believe.

That's why you need a comprehensive guide to assist along every step of the way when disciplining employees.

And that's where our Labour Law for Managers handbook comes into play! By simply paging over to Chapter D 01 and D 02, you'll learn all there is to know about workplace discipline, such as how to issue disciplinary warnings, what to include in your disciplinary policy and how to conduct a legally compliant disciplinary hearing and so much more!

If you don't already have this indispensable resource, click here to order your copy today. 

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