Ian pleaded guilty to this charge and was found guilty.  He retaliated when provoked and in doing so acted unprofessionally in the workplace and subjecting his colleagues to his offensive behavior.

The circumstances within which the language was used has to be evaluated in particular against whether the language used was directed at a particular employee or employees. The level of malice, the extent of the abuse and its degree are factors that may aggravate the offence. See PAK le Roux & Andre van Niekerk, The South African Law of Dismissal at 124-5.

There is authority that the discretion to determine a sanction in a disciplinary hearing lies with the employer and not the arbitrators. The discretion of an arbitrator is limited to determining the fairness of the sanction. The criterion is not whether an arbitrator would have imposed a different sanction or he/she did not like the sanction imposed by the employer. The question is whether or not the sanction is correct, or the commissioner agrees with it. The question is whether or the sanction is fair. See Rustenburg Platinum Mines LTD (Rustenburg Section) v CCMA & others [2006] 11 BLLR 1021(SCA).

In order to discipline and possibly dismiss an employee for misconduct the employer will have to be able to prove that the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

  • that the rule was a valid or reasonable rule or standard;
  • the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
  • the rule or standard has been consistently applied by the employer.

Schedule 8 further recommends that employees are not dismissed for the first act of misconduct unless serious enough to warrant a dismissal.

In the case of Humphries and Jewel (Pty) Ltd v Fedcraw and others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue.  “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”

In the case of Ceppwawu obo Evans v Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation.

He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.
Despite the fact that the employee had apologised to the complainant for his remark, the arbitrator upheld the dismissal.