A comparative evaluation of the law on remedies in cases of unfair dismissal for employee misconduct : Lesotho and South Africa in perspective

• Author: T. Mohapi,K.E. Mosito
• DOI: 10.10520/EJC196790
• Pages: 133-164
• Published date: 01 January 2016
• Date: 01 January 2016

A COMPARATIVE EVALUATION OF THE LAW ON

REMEDIES IN CASES OF UNFAIR DISMISSAL FOR

EMPLOYEE MISCONDUCT: LESOTHO AND SOUTH AFRICA

IN PERSPECTIVE

Mosito, K.E.* & Mohapi, T.**

Abstract

Misconduct is one of the grounds upon which an

employee can be dismissed b oth at common law an d

under statute law. However, the nature of the remedy

available to an employee who has been dismissed has

been a more problematic aspect of the employment law

than the question whether or not an employee can be

dismissed for misconduct. The choice of reme dies in

unfair dismissal cases involving misconduct continues

to cause confusion in both the Lesotho and South

African labour law systems. This article examines this

challenging facet of the law. The article concludes that

while it is true that there has been legislative

intervention in this area, the real question is still one as

to when to award the one or the other of the three

remedies available.

Introduction

The common law and statute laws of Lesotho and South Africa

clothe an employer with the power to dismiss an employee for

misconduct and to impose an appropriate sanction. The purpose of

this article is to undertake a comparative evaluation of the law on

remedies in cases of unfair dismissal for employee misconduct in

both Lesotho and South Africa. This will be achieved in basically

four main ways. First, a brief conceptual discussion on the issue of

misconduct will be undertaken. Second, the article will e ndeavour

to trace the evolution and development of the remedies for unfair

134 LLJ Vol. 24 NO. 1

dismissal. Third, the article will examine the reasons advanced for

the reluctance to award reinstatement and reliance on damages for

breach of contract. Fourth, an examination of the change of

approach and the underlying justifications therefor will be

embarked upon. The article will, by way of conclusion, highlight

the general principles for exercising choice of the remedies in cases

of unfair dismissal for misconduct.

Conceptual framework

It is widely recognized that the employer has the right to maintain

and enforce discipline in the workplace.1 The origin of this right is

the contract of employment, which establishes a relationship

between the employer and the employee, known as the

‘employment relationship.’2 The contract of employment

* Dip(Law); BA(law); LL.B(NUL); LL.M(Edin); PhD(UCT), Associate

Professor of Law and Dean of the Faculty of Law(NUL) and President of

the Court of Appeal of Lesotho.

** BA(Law); LL.B(NUL); PGD in Law (Conciliation and Arbitration)

(NUL/UNAM/UCT); LL.M(UNISA); Corporate Secretary at Metolong

Authority and Part-time Lecturer at the Fa culty of Law (NUL).

1 Basson A C et al Essential Labour Law 4th Ed (LLP Cape town 2005) at 110 -

This has al so been endorsed in se veral de cisions notably Atlantis Diesel

Engines (P ty) Ltd v Roux NO and a nother (1988) 9 ILJ 45 (C)

2 The employment relationship is distinguished in South African labour

law from other relation ships that ma y appear similar such as the employer

- independent contractor relationship. The distinction is discussed in

Mureinik E ‘The contract of employment: An easy test for hard cases’

(1980) 97 SALJ 246. The Courts have also devised guidelines to determine

the existence of the employment relationship as opposed t o inde pendent

contractor situation, see SABC v McKenzie (1999) 20 ILJ 585. For further

insight on the guidelines for determinin g the employment relationship, see

the Code of Good Practice: Who is an Employee issued by NEDLAC in terms s

200A (4) read with s 203 of the Labour Relations Act 1995

(hereinafterreferred to as the ‘LRA 1995’), Governme nt Gazette No. 29445

of 1st December 2006.

135

presupposes that the employee is subordinate to the employer. 3 The

employer has the power to prescribe standards of conduct in the

workplace. The duty of the employee in the rel ationship is to o bey

all lawful and reasonable instructions from the employer. 4 Thes e

include the rules regulating the employee’s conduct or discipline in

the workplace. The act of the employee of breaching the standard of

conduct prescribed by the employ er is referr ed to as misconduct. 5 It

is thus one of the duties of the employee in the contract of

employment to refrain from misconduct. Misconduct is one of the

three main grounds for dismissing an employee in the South

African6 as well as Lesotho7 labour law systems. The law requires

that the dismissal for misconduct must be fair8 as opposed to the

3 Smith v Workme n’s Compensation Commissioner 1979 (1) SA 51 (A) at 61 -

This view is expressed in very strong terms by Mureinik E (1980) supra at

263 fn 93. It is also supported in Davis and Freedland Otto Kahn – Freud

Labour and the Law (Stevens & Sons, 1977) p14 – 15.

4 Van Jaarsveld F and Van Eck S Principles of Labour Law 2nd Ed

(Butterworths Durban, 2002) at 109 para 242 – 243.

5 Grogan J Dismissal (Successor to Le Roux and Van Nieker k’s The South

African Law of Unfair Dismissal (Juta Durban 2004) at 87 – According to

the author although miscond uct is the most common justification for

dismissal in South Africa there is no comprehensive defin ition o f the term

in statute or ca se law. He asse rts that in labour l aw misconduct take s pla ce

when an employee culpa bly disregards the rules of the workplace derived

from the employee’s contract or standards accepted as applicable in the

workplace or the employer’s disciplinary code.

6 The other two ground s are incapa city and operational requirement s (s

188(1) of the LRA 1995). The three grounds are recognized in other Roman

Dutch labour law jurisdictions in the Southern African region such as

Lesotho, Swaziland, Botswana, Namibia and Zimbabwe some of which

will be examined later in this paper.

7 S 66 of the Labour Code Order No. 24 of 1992.

8 This is also found in the s 66 of the Labour Code order of 1992 of Lesotho.

This two tier approach of dealing with the fairness of dismissal was first

developed under the Labour Relations Act 1956 and was used extensively

by the Industrial Court, See Le Roux PAK ‘Dismissals for Misconduct:

Some Reflections’ (2004) 25 ILJ 868 at 868 to 869. The learned authors Du