Disciplinary hearings: Aggravating and mitigating factors

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The purpose of discipline is not to punish but to correct the errant behaviour of employees in ways that advance the goals of the enterprise.

Even where an employee is guilty of a serious offence, the employer should endeavour to first correct the behaviour of the employee before dismissal can be considered.

There are numerous possible options besides dismissal and these include demotion, suspension with or without pay, a written warning, training (where lack of knowledge or skill is the cause of the problem) and treatment (for example, where addiction or alcoholism is concerned).

At the penalty stage of a disciplinary hearing, mitigating and aggravating factors should be considered before an appropriate sentence is imposed on the offender. Mitigating or extenuating factors are those which call for a lighter penalty.

Conversely, aggravating factors are those which indicate that the maximum prescribed penalty should be imposed.

The hearing officer or chairman must consider mitigating and aggravating factors together, to obtain a balanced view. This is mandatory in terms of section 12B (4) of the Labour Act (Chapter 28:01).

The section reads as follows: “In any proceedings before a labour officer, designated agent or the Labour Court, where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

This requirement was well-stressed in the case of Zimbabwe Alloys Limited versus Amos Muchochonyi (Supreme Court judgment Number 7 of 2006). Zimbabwe Alloys appealed to the Supreme Court against a Labour Court judgement which had been made in favour of Muchochonyi. According to the presiding judge Justice Wilson Sandura, the Labour Court erred by stressing only mitigatory circumstances in favour of Muchochonyi while ignoring aggravating factors against him, such as his previous poor disciplinary record.

Muchochonyi had been convicted before of insubordination on two occasions within a space of one month for which he was given a final written warning. While this warning was still valid, he disobeyed a lawful order and was subsequently dismissed.

The Labour Court reinstated Muchochonyi but Zimbabwe Alloys appealed to the Supreme Court which overturned the decision of the Labour Court.
Where mitigating circumstances exist, it would be folly for employers to ignore them.

Otherwise time and money will be wasted by employees challenging every dismissal if they believe that their cause may be viewed sympathetically by arbitrators and the courts.

The list of mitigating factors is not exhaustive but the most common ones that have been considered include length of service, the employee’s previous disciplinary record, the employee’s attitude towards the offence, personal circumstances, provocation and previous exemplary service.

In most cases, the number of years of service would count in the employee’s favour. The employer has a greater duty of leniency to an employee with longer service than to one with only a few months service. The attitude of the offending employee is also a critical element in determining the penalty.

If the employee expresses remorse or shows contrition and promises to reform, some form of lighter sanction should be considered. Personal circumstances should also be taken into account in the application of a penalty.

Marital status, financial circumstances, the employee’s age, likelihood of re-employment elsewhere, educational qualifications, number of dependants, for example, are some of the personal factors to consider. In cases of poor performance, such information can be mitigatory.

However, the fact that a person has ten wives and several children to support cannot be a mitigating factor in offences such as theft of company property!

Previous exemplary service may also be a mitigating factor, for example if an employee has regularly produced quality work or has always agreed to work overtime when called upon to do so even at short notice, he or she should be treated in a sympathetic manner. In the offence of physical assault, provocation would be a mitigating factor.

The disciplinary policy of the employer can also be mitigatory. If a particular offence has been condoned in the past, management cannot suddenly be serious about it when it has now been committed by a particular employee.

The onus of presenting the mitigating factors rests on the employee.

However, if an employee or his representative fail to do so, it is not enough to merely dismiss mitigation as irrelevant. A cautious hearing officer must bend over backwards to find possible extenuating circumstances which would call for an alternative penalty to dismissal.

Let’s now look at the other side of the coin – aggravating factors. Length of service can at times be one of them. An employer often puts a great deal of trust in an employee with many years of service. It could count against such employee if he breached the trust in him after many years of service.

The point was well illustrated in Pillay v CG Smith Sugar (1985). There the court, having considered all the circumstances of the case, held that the employee’s dismissal was fair in spite of the fact that he had 22 years of service.

The offending employee’s attitude can also be aggravating. If the employee fails to see the error of his ways and displays arrogance, dismissal in this instance may well be justified.

The existence of previous unexpired warnings can also be raised in aggravation, as in the Zimbabwe Alloys case reported earlier.

The previous warnings must bear a fairly close relation or fall into the same category with the latest offence. However, this is not hard and fast and each case must be decided on its merits.

In Nodlele v Mount Nelson Hotel and Another (1984), the court pointed out that the fact that an employee has two prior warnings does not entitle the employer automatically to dismiss him at the third instance of misconduct. The last incidence of misconduct must be serious enough on its own to warrant dismissal.

Misconduct may be of such gravity as to constitute a serious breach of the trust relationship between the employer and the employee, making continued employment untenable.

Examples of such misconduct are theft, fraud, willful damage to the property of the employer, willfully endangering to the safety of others and physical assault.

Certain types of misconduct are so unacceptable that they cannot be excused and even if mitigating factors are overlooked, dismissal may still be considered just and fair.

The nature of the employee’s job can also have an aggravating effect.

The employer would normally expect a higher degree of responsible behaviour from a senior manager than from an ordinary worker. The policy of the organisation on particular offences is also important.

Offences involving children for an employee working in an orphanage would ordinarily be viewed harshly.

Likewise, playing with matches or smoking in an explosives factory or in flammable environments of an oil company would be considered in more serious light than would be the case if such behaviour were displayed in the offices of a bank.

The attention of employees will usually be drawn to such situations in the companies concerned.

While there is need for consistency in the administration of discipline, this does not necessarily mean applying the same penalty to different employees who have committed a similar offence.

Mitigating and aggravating circumstances exist and they do vary, meaning that as far as possible, penalties must be applied in a critical and individualised manner.

Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail: imazanhi@gmail.com or cell: 0773 063 653