Dismissal for misconduct is said to take place when an employee disregards the rules of the workplace. Misconduct is considered to be the unacceptable or improper behavior of an employee.
Not all misconduct will justify the sanction of a dismissal, only serious misconduct will. In determining the seriousness of a misconduct, the following factors must be considered:
Section 188(1) and (2) of the Labour Relations Act stipulates that a dismissal is unfair “if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure”. Further, “any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure, must take into account any relevant code of good practice issued in terms of this Act”.
It is also important to take into account Section 192 of the Labour Relations Act, with regards to the onus in dismissal disputes, that stipulates:
In a Nutshell – A misconduct dismissal is regarded as a dismissal of an employee for failure by the employee to comply with the company’s rules and regulations or due to the improper or unacceptable conduct of the employee.
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