The concept of “mitigating circumstances” refers to evidence brought by the employee that may persuade the presiding officer to hand down a lighter penalty than would normally be imposed should same be imposed.

Item 3(5) of Schedule 8 of the LRA says that, “When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances , including:

  • Previous disciplinary record; whether the employee has a previous disciplinary record and whether progressive discipline has had the desired effect on the employee.
  • The nature of the job (job requirements) and
  • The circumstances of the infringement itself.
  • Personal circumstances; such as the size of the family the employee is supporting (dependents),
  • Length of service; how many years of service the employee has with the employer

In the case of Sidumo v Rustenburg Platinum Mines (2007) the Commissioner held that the dismissal of a security guard who failed to search employees leaving a high security area in a mine, was too harsh a sanction in view of his length of service and clean disciplinary record.

The employer has a greater duty of leniency to an employee with longer service than to one with only a few months service

In the case of Shoprite Checkers (Pty) Ltd v the CCMA (CLL, Vol 18, August 2008, case number JA 46/05) the employee was dismissed for consuming the employer’s food without paying for it. In this case the Labour Appeal Court found that the employee had 30 years of service and was a first offender. The Labour Appeal Court therefore agreed with the CCMA that the dismissal had been too harsh. It is trite law that long service is a factor which needs consideration when determining whether or not the sanction of dismissal is appropriate.

In the case of Woolworths (Pty) Ltd v The Commission for Conciliation, Mediation & Arbitration & C Masoleng, it was stated that:

It has long been held that the employer’s decision to dismiss an employee will only be interfered with if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service with the employer thus far is indeed an important and persuasive factor against a decision to dismiss the employee for misconduct, but is by no means a decisive one.