What are Aggravating Factors and Mitigating Factors?

In a disciplinary hearing, reference may be made to aggravating factors and mitigating factors. This post addresses the meaning of these concepts, and how they should be approached by the parties to the hearing.

A disciplinary hearing usually consists of two parts. The first part relates to guilt – whether or not the employee party has committed the misconduct alleged against him or her. The second part, if a finding is made that the employee is guilty, pertains to sanction.

The Code of Good Practice: Dismissal in Schedule 8 to the Labour Relations Act, provides guidance regarding how the issue of sanction should be approached. It provides that dismissal should be reserved for cases of serious misconduct, and that progressive discipline should be applied where possible. Progressive discipline refers to disciplinary action aimed at correcting behaviour, such as written warnings and final written warnings.

In addressing the issue of sanction, disciplinary chairpersons usually invite the parties to make submissions in aggravation and mitigation of sanction.

The employer party’s submissions in aggravation are aimed at motivating why the employee’s misconduct is serious and deserving of a harsh sanction. Factors which are relevant to this, include whether the employee has a previous warning on their record for similar misconduct, the seriousness of the misconduct that they have committed and the absence of remorse.

The employee’s submissions in mitigation, are aimed at motivating for a lighter sanction.

Many employees incorrectly approach this as an opportunity to argue that they are innocent and did not commit the misconduct. However, this is incorrect as the misconduct has been determined already, and at this stage, the focus should be squarely on sanction.

Factors which the employee may advance in mitigation of sanction, may include the fact that the employee has a clean disciplinary record (if this is the case), long service with the employer, personal circumstances such as dependents who rely on the employee for support, and remorse (if the employee has acknowledged wrongdoing).

Ultimately, the submission of aggravating factors and mitigating factors is aimed at assisting the disciplinary hearing chairperson to arrive at a fair outcome which takes into account both sides and balances their respective interests.