Remorse and progressive discipline

One of the most challenging areas that arises in disciplinary proceedings where a finding of guilt is made, is remorse and progressive discipline. If an employee has acknowledged wrongdoing and committed not to repeat the misconduct, should the employee be given a second chance? Or are there factors justifying dismissal irrespective of how sorry the employee feels?

The first important concept which the disciplinary chairperson needs to evaluate, is whether the employee has shown genuine remorse. Often employees who are caught committing misconduct, claim to be apologetic in order to secure a lighter sanction, without truly feeling sorry.

In the case of S v Matyityi 2011 (1) SACR 40 (SCA), the Supreme Court of Appeal remarked as follows on this issue at paragraph 13:

“There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions”.

Once it is established that an employee has shown remorse, the next question is whether this is enough to save the employee from dismissal. This depends largely on the nature and seriousness of the misconduct. Misconduct involving dishonesty is generally considered serious, and it is rare for an employee who has been dishonest, to be saved from dismissal even if he shows remorse or has long service (or other mitigating factors).

In the judgment in Toyota SA Motors (Pty) Ltd v Radebe & others [2000] 3 BLLR 243 (LAC), the Labour Appeal Court said the following regarding the nature and effect of an employee’s dishonesty:

“Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.”

Where an employee shows no remorse at all (for example, by maintaining a dishonest defence that he has done nothing wrong), this renders the misconduct more serious and acts as an aggravating factor.

In Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC), the Labour Appeal Court described the position on remorse and progressive discipline as follows:

“Accordingly, she contended that, given the fact that the appellant had an unblemished record and that, until this point, there was no indication in his conduct of any dishonesty or any impropriety prior to the events that gave raise to this dispute, a form of progressive sanction would have been more appropriate. I have no doubt that these arguments would have carried far greater weight had there been a scintilla of recognition by the appellant of his wrongdoing. By contrast, the appellant denied that any conversation or conversations had taken place with Ms Brisley. Throughout the disciplinary hearing and the hearing before third respondent appellant continued to take the view that the allegations brought against him were no more than lies. Appellant showed no remorse, no recognition of misconduct, save for a blatant and clearly dishonest denial. That places this case into an order of different magnitude from those urged upon us by Ms Bezuidenhout.”

Ultimately, the consideration of remorse and progressive discipline requires a case-by-case analysis, and a value judgment by the disciplinary chairperson, taking into account all relevant factors including the nature of the transgression and the aggravating and mitigating circumstances.