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Mitigating Factors 14052022
Introduction To Business Management (FINM271)
North-West University
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Mitigating Factors
Mitigating factors are considered after an employee is found guilty of an offence. Mitigating factors are circumstances that would be used to persuade the chairman to be lenient and reduce the severity of the sentence. A variety of considerations as stipulated in item 3(4) of Schedule 8 of the LRA need to be considered in the mitigation plea. A clean disciplinary record, lengthy service, repentance, the circumstances of the offence, whether the individual admitted to the wrongdoing, and any other variables that may assist to mitigate the employee's moral culpability are among these criteria. Employers are not compelled to consider mitigating circumstances just because they elicit sympathy.
The question a mitigating plea should answer is whether the employee will repeat the offense individually or cumulatively (textbook).
These factors include a clean disciplinary record, long service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanour and any factors that might serve to reduce the moral culpability of the employee. An employer is not required to take mitigating circumstances into account merely because they evoke sympathy. The test is whether taken individually or cumulatively the employee will not repeat the offence.
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According to Item 3(5) of Schedule 8 of the LRA “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 length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself” (Polity,2020). These circumstances, which are included in Item 3(5) of Schedule 8, are known as mitigating factors, and they must be considered when assessing whether a dismissal punishment is warranted.
Mitigating factors are circumstances that would be used to persuade the chairman to be lenient and reduce the severity of the sentence. Employers are not compelled to consider mitigating circumstances just because they elicit sympathy. The question a mitigating plea should answer is whether the employee will not repeat the offense individually or cumulatively.
In order for the dismissal sanction to applied, the employer must show to the Judge or Commissioner that the seriousness of the offense outweighed the employee's circumstances in mitigation (Du Toit, 2022).
According to Item3(4) of schedule 8 of the LRA (Code of Good Practise: Dismissal), it is not appropriate to dismiss an employee for a “first offence”, unless if the misbehaviour is of such seriousness that a prolonged employment relationship is intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are: gross dishonesty or wilful damage to the property of the employer; wilful endangering of the safety of others; physical assault on the employer, a fellow employee, client, or customer; and gross insubordination.
However with any type of misconduct the dismissals must be for a fair,recoginised reason and effected in accordance with fair procedure.
take mitigating circumstances into account merely because they evoke sympathy. The test is whether taken individually or cumulatively the employee will not repeat the offence.
Mitigating factors are situations that would be used to persuade the chairman to be lenient and reduce the severity of the sentence. The employer must establish to the Judge or Commissioner that the gravity of the crime surpassed the employee's circumstances in mitigation in order for the firing punishment to be levied Mitigating factors are situations that might persuade the chairman to be merciful and reduce the severity of the sentence. The employer must demonstrate to the Judge or Commissioner that the gravity of the violation outweighs the employee's circumstances in mitigation (
Mitigating circumstances can influence the penalty or corrective action decision. 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.
Where an employee is found guilty in any hearing,
Personal circumstances: Age; Marital status; Whether the accused’s spouse is employed; Children and ages of the children; Past disciplinary record; Whether the accused is remorseful or not; Years of service; Position in the company; Level of responsibility; Consistency; The nature of the job and tasks undertaken by the employee; The potential impact of the sanction on the workforce; The prospects of rehabilitation of the accused; Seriousness of the misconduct in light of the above.
An employee is not required to take mitigating factors into consideration merely because they evoke sympathy. The test is whether, taken individually or cum
In the case of Moloantoa v CCMA and Another (JR 1281/19) [2021] ZALC 10 (31 May 2021)
To show that a dismissal consequence was reasonable in the circumstances, the employer must persuade a Commissioner or Judge that the gravity of the offense exceeded the employee's circumstances in mitigation.
clearly states that being guilty of misconduct should not be the only reason leading to dismissal but
This makes it clear that circumstances other than the gravity of the
offence itself must be taken into account before dismissing an
employee.
in order to prove that a dismissal was fair under the ciran employer will have to show clearly states that being found guilty of misconduct is not to dismiss an employee. To show that a dismissal consequence was reasonable in the circumstances, the employer must persuade a Commissioner or Judge that the gravity of the offense exceeded the employee's circumstances in mitigation. In order to prove that a sanction of dismissal was appropriate under the circumstances, the employer will have to be able to convince a Commissioner or Judge that the seriousness of the offence outweighed the employee’s circumstances in mitigation. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. It is therefore clear that in order to prove that a dismissal was for a fair reason, the employer will have to prove that the employee was on the balance of probabilities guilty of the misconduct accused of and that a dismissal was an appropriate sanction. This seems to be straight forward but many employers justify a dismissal based solely on the fact that the employee was found guilty of an act of misconduct. This is clearly contrary to the guidelines of schedule 8. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider circumstances raised in mitigation by the employee and in aggravation by the employer. In order to prove that a sanction of dismissal was appropriate under the circumstances, the employer will have to be able to convince a Commissioner or Judge that the seriousness of the offence outweighed the employee’s circumstances in mitigation.
This is plainly in violation of Schedule 8's standards. When evaluating whether or not to apply the punishment of dismissal, the employer should examine facts mentioned in mitigation by the employee and aggravation by the employer, in addition to the seriousness of the misbehavior.
Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. It is therefore clear that in order to prove that a dismissal was for a fair reason, the employer will have to prove that the employee was on the balance of probabilities guilty of the misconduct accused of and that a dismissal was an appropriate sanction. This seems to be straight forward but many employers justify a dismissal based solely on the fact that the employee was found guilty of an act of misconduct. This is clearly contrary to the guidelines of schedule 8. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider circumstances raised in mitigation by the employee and in aggravation by the employer. In order to prove that a sanction of dismissal was appropriate under the circumstances, the employer will have to be able to convince a Commissioner or Judge that the seriousness of the offence outweighed the employee’s circumstances in mitigation.
mail.labourguide.co/most-recent/1386-mitigating-circumstances-and-dismissal-as- an-appropriate-sanction
The Labour Relations Act (LRA) does not specifically allude to
mitigating circumstances. However, 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 length of service, previous disciplinary
record and personal circumstances), the nature of the job and the
circumstances of the infringement itself.”
polity.org/article/are-mitigating-circumstances-relevant-to-misconduct- hearings-2020-08-
This makes it clear that circumstances other than the gravity of the
offence itself must be taken into account before dismissing an
employee. These additional circumstances stated in Schedule 8 are
commonly known as mitigating circumstances. An employee who
punched a colleague after being severely provoked should not be
treated the same as an employee who assaulted a colleague
without provocation.
Mitigating Factors 14052022
Course: Introduction To Business Management (FINM271)
University: North-West University
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