For a dismissal to be fair, it needs to be two things:
- procedurally fair;
- substantially fair.
Procedural fairness means the employer followed a fair procedure with regards to notices, warnings, the disciplinary hearing, etc. Substantive fairness means the employer dismissed you for a valid reason.
When determining the sanction following a fair disciplinary hearing (which could include a warning, demotion, dismissal, etc.), the employer is obliged to consider mitigating circumstances. These are the factors that may justify a different sanction than dismissal.
These factors include:
- The employee’s circumstances;
- Nature of the job;
- Circumstances of the contravention.
The employee’s circumstances entail considerations such as:
a) Does the employee have a previous disciplinary record or is this a first contravention?
b) What is the length of the employee’s service? Has he/ she been with the company for many years or is it a fairly new employer-employee relationship?
c) Is the employee the sole breadwinner in his/ her family meaning many are dependent on him/ her?
The nature of the job refers to the main responsibility of the job vs the contravention. If the employee is responsible for driving passengers, then arriving for work intoxicated is even more serious. If the employee is responsible for financial services, then caught stealing is even more serious. If an employee is responsible for security, then caught sleeping on the job is even more serious…
The circumstances of the contravention is also important. For example, was the intoxicated employee mandated to attend a work function and encouraged to drink shots with management? This is a factor that will justify a different sanction than dismissal.
It is important for the employer to conduct an investigation and to give consideration to all factors. It is furthermore important that the employee is allowed a reasonable time to prepare a case in response, as well as a proper opportunity to present it.