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In Sidumo vs Rustenburg Platinum Mines Ltd and others (October 2007) The Constitutional Court found that the employee’s dismissal had been unfair despite his misconduct having been serious enough to justify dismissal. This decision was based largely on the fact that Sidumo had had long service, which was a sufficient mitigating factor to make the dismissal sanction unfair.
However, in AMCU vs Power Construction (Lex Info 8 January 2025. Labour Court case number C170/2022) the arbitrator had found, in effect, that the dismissed employee’s misconduct was aggravated by his long service. And the Labour Court accepted this.
Based on the above paradoxical findings how do employers know whether to use length of service as a mitigating or aggravating circumstance?Where it has been shown that the employee’s service has been loyal and exemplary, this should be considered as a mitigating factor. The interpretation of Schedule 8 by many arbitrators and judges appears to disagree with my view. I nevertheless stand by my view because long service is not necessarily an indication of loyalty. It could, in some cases, merely mean that the employee has been unable to get another job or hasn’t been caught perpetrating misconduct. Long service should be taken into account as an aggravating factor when it is shown that the employee is experienced as regards the workplace rules and ought to have known better.
However, because many arbitrators and judges are likely to interpret item 3. (5) of schedule 8 in the employee’s favour, employers will need to tread very warily when considering how to treat mitigating and aggravating circumstances.
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