The key difference between misconduct and incapacity lies in the fact that the former involves intentionally or negligently breaking the work place rules. In other words, the employee breaks a rule in circumstances where he or she could have complied, but either refused or failed to do so. Incapacity concerns an employee unable (not unwilling) to do what is expected of him or her.

Most employers are probably aware by now that the determination of whether an employee is guilty of misconduct depends on whether or not the following questions can be answered in the affirmative, namely whether:

The rule can originate from a number of sources:

• the employee's contract;
• an agreement between the employer and a trade union;
• legislation (e.g. health and safety rules);
• it may be a rule that the employer has introduced unilaterally (e.g. operating procedures or a disciplinary code); or
• it may be found in the common law. The latter essentially includes all legal rules not found in legislation and covers things such as the employee's duty to obey lawful instructions; the duty of good faith and honesty; the duty to cooperate with the employer; and the duty to do the job with reasonable care and skill.

While there are certain rules that are fairly obvious and, strictly speaking, need not even be mentioned in disciplinary codes, e.g. the prohibition against theft or assault, or absence without leave, it is good practice to include all rules applicable to a workplace in a document of some kind. It doesn't matter whether one calls it a disciplinary code, rules of conduct, or something similar - the important thing is that the rules should be documented to avoid any uncertainty regarding the existence.

In addition, supervisors and line managers should ensure that the rules are communicated to staff, e.g. during induction or team meetings. This is especially important for those rules that might not be generally known because they are specific to a particular work environment or job. For example, in the food processing industry clean hands are of critical importance, but new employees might not know this when they are initially employed. The more obscure the rule, the greater the need for employees to be informed about it.

Since the decision of the Constitutional Court last year in Sidumo v Rustenburg Platinum Mines, it has become essential for employers who have dismissed someone for transgressing a rule, to prove to an arbitrator that the rule in question is valid or reasonable. Dismissing someone for theft or fraud is unlikely to raise eyebrows. But in addition to these, the employer will have to provide some evidence at arbitration that dismissal was an appropriate response to the breach of the rule.

Take, for example, fighting in the workplace. Not all instances of fighting will justify dismissal. But if an employer can prove that, given the nature of its operations, fighting creates a serious safety risk and that employees have been informed that it would regard people engaged in fighting in a very serious light, it would be able to convince an arbitrator that dismissal of those involved in the fight was appropriate. Obviously, evidence that one party provoked the fight while the other was merely defending himself must be considered too.

The point is that employers must not assume that arbitrators will necessarily know why a particular rule is viewed in a serious light. It is imperative that documentary or verbal evidence should be provided at arbitration to substantiate the claim. Merely relying on the fact that one’s disciplinary code says that dismissal will follow, may not be sufficient.

Barney Jordaan of Maserumule Employment Consultancy for www.labourwise.co.za

Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or info@labourwise.co.za