Where an employee is found guilty in any hearing, mitigating circumstances can influence the penalty or outcome of the hearing.
The concept of “mitigating circumstances” refers to evidence brought by the employee that may persuade the chairperson to hand down a lighter penalty than would normally be imposed.
The Code of Good Practice: Dismissal – Item 3(4) of Schedule 8 of the Labour Relations Act, provides that “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. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination”.
Item 3(5) of Schedule 8 provides further that “when deciding whether or not to impose a penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.”
In his book entitled Dismissal (Juta, 2014) at page 211, Professor John Grogan remarked as follows regarding Mitigating Factors:
“Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or aggravating) factors constitutes a separate inquiry. A variety of considerations may be relevant when considering a plea in mitigation. These include a clean disciplinary record, long service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanor and any other factors that might serve to reduce the moral culpability of the employee. An employer is not required to take mitigating factors into account merely because they evoke sympathy. The test is whether, taken individually or cumulatively, they serve to indicate that the employee will not repeat the offence”
In Hulett Aluminium Pty Ltd vs Bargaining Council for the Metal Industry (2008), the Labour Court held that “it would be unfair to expect of an employee to take back an employee when the employee has persisted with his or her denials and has not shown any remorse.”
In De Beers Consolidated Mines Ltd vs CCMA and Others (1998), the Labour Court held as follows:
“It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust relationship which he himself has broken.”
In S v Matyityi (2010), the Supreme Court of Appeal held that “before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.”
In a Nutshell – when found guilty in a disciplinary hearing, an employee’s mitigating circumstances can have a huge impact on the outcome of the hearing and especially taking the view of the courts into consideration, showing remorse will definitely count in the favour of the employee.
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