Use aggravation to counter mitigation


Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me | 

When an employer fires an employee for dishonesty or gross dereliction of duty it normally intends for the employee to stay fired. However, the Labour Relations Act (LRA) dilutes the employer’s right to dismiss by:

  • Laying down numerous and stringent criteria for deciding whether a dismissal decision should stand or not
  • Giving arbitrators and judges the right to overturn dismissal decisions

It is the above provisions that have plagued many employers over the past eleven years and have resulted in many thousands of employees being reinstated.

Even where employer have proven that employees have committed a dismissible offence the courts have often ruled that dismissal is unfair because of the mitigating circumstances existing in the case at hand.

Sidumo vs Rustenburg Platinum Mines Ltd and others

A case in point is that of Sidumo vs Rustenburg Platinum Mines Ltd and others (October 2007, Skills Portal News Letter).

Sidumo had, as a security guard with 15 years’ service, been instructed to search all people exiting the company’s precious metals store. He failed to do so.

The Constitutional Court said that arbitrators are not required to defer to employers’ decisions and must instead take all relevant circumstances into account in deciding if the employer’s sanction decision was fair.

The union had raised the mitigating circumstances of Sidumo’s long service and that he had not been trained in the job he was required to do. It is entirely unclear what training, other than being given this instruction, would have been necessary, or why his 15 years of service should have been used in his favour instead of as proof that he was an experience security guard who would know his job responsibilities.

This decision marked the end of an era during which employers had the right to dismiss perpetrators for gross misconduct despite insignificant mitigating circumstances. The Constitutional Court has effectively decided that the jobs of errant employees must be protected regardless of the damage they might do to their employers.

In their disappointment employers should not lose heart and be deterred from dismissing employees who deserve it. Instead they must ensure that, before they discipline and dismiss employees, they consult a labour law expert in order to ensure that employees who deserve to be dismissed remain fired.

Strategies for countering arguments in mitigation include:

  • Disproving the alleged facts on which mitigation claims are made
  • Showing that these alleged facts do not amount to mitigation
  • Bringing solid facts to support aggravating circumstances to outweigh any mitigating factors.



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