Disciplinary sanctions in the alternative
Authors Kershwyn Bassuday
Affiliations: Lecturer, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2251 – 2259
There are various ways in which an employer may discipline an employee for his or her misconduct. Labour law jurisprudence and the general boni mores of society would hold that it is important to ensure that employers choose the best, most fair and least traumatic method of disciplining their employees. Heed in this connection should be taken of the effect of the discipline on both the employee and employer, and the workplace dynamics between them. Consideration should also be given to whether the employment relationship can be salvaged. A critical question in this respect is whether the imposition of an alternative sanction to dismissal necessarily implies that the relationship may be repaired as this could have ramifications in circumstances where an employer grants an employee a choice of sanction. For instance, if the employer offers an employee the option of either an unpaid suspension or a dismissal for the same misconduct and the employee chooses dismissal but later submits to a tribunal that the dismissal was unfair, can the employer rely on the argument that the employment relationship was intolerable despite having offered the employee the lesser alternative sanction? Apart from exploring this situation, the article further proposes different theories as a basis for examining the diverse approaches which have been adopted in the imposition of alternative sanctions. Finally, it explores the parameters of the different types of alternative sanctions and their efficacy.