Mitigation or Not? Would You Have Fired Them?

Two employees. Two serious acts of misconduct. Two heartbreaking stories. Would you have dismissed them?

I was recently going through some old disciplinary hearing notes when I came across two cases I had been involved in. Both involved serious misconduct. Both employees were found guilty. Both were dismissed.

Yet, looking back, the outcomes have never really sat comfortably with me. At the time, the final decisions were made within the framework of workplace discipline, consistency and the need to protect the employer. The arguments for dismissal were clear. But so were the personal circumstances surrounding each case.

One employee was dealing with unimaginable family tragedy and financial hardship. The other was desperately trying to escape domestic violence with her infant child.

Neither situation excused the misconduct. But did in deciding sanction was enough weight to the circumstances that led to it?

With the growing awareness of gender-based violence (GBV) in South Africa, I find myself revisiting these cases with a different perspective.

Do workplaces do enough to support employees experiencing violence and other personal crises?

As HR professionals, labour relations practitioners and business owners, we have a responsibility to maintain workplace standards. We must protect our businesses, apply disciplinary procedures fairly and hold employees accountable for their actions.

But perhaps we also need to ask ourselves whether we sometimes focus so heavily on the misconduct that we overlook the human being behind it.

Could a different approach have produced a fairer outcome? Were there alternatives to dismissal that we should have explored? And when an employee is facing extraordinary circumstances, where should we draw the line between accountability and compassion?

I don't pretend to have all the answers. These are decisions that remain difficult, even with years of HR and labour relations experience.

However, I believe they deserve another look.

So, let me share the two cases that have stayed with me and ask you a question that is easier to pose than answer:

Case Study 1: Two Funerals, Financial Pressure and a Packet of Cigarettes

Imagine losing your daughter in horrific circumstances.

The daughter struggled with drug addiction and owed money to a drug dealer. After trying to help her, the family had decided to practice tough love and withdraw financial support.

Then tragedy struck.

The daughter was brutally beaten during a drug-related incident by the drug dealer. Her injuries were so severe that she was hospitalised. She subsequently died.

Now imagine being her mother and having to arrange her funeral.

For an employee earning minimum wage, the financial pressure would be enormous. The emotional pain would be difficult enough without worrying about how to pay the bills.

But the tragedy did not end there.

Three weeks later, the employee's brother died. He had been the family's main support, helping to care for a household without parents.

Suddenly, she faced another funeral, more expenses and additional family responsibilities.

She was grieving, financially stretched and expected to help support those left behind.

Somewhere during this difficult period, she began selling loose cigarettes in the canteen where she worked.

She was caught, and a disciplinary hearing followed. She was found guilty of misconduct.

The labour consultant recommended dismissal, arguing that retaining her employment would set a dangerous precedent.

However, her colleagues pleaded for mitigation.

The employer ultimately recommended dismissal.

Would You Have Dismissed Her?

Let's be clear. Selling cigarettes at work was misconduct. Personal hardship does not automatically excuse an employee's actions.

However, should the circumstances have influenced the disciplinary outcome?

Could a final written warning, repayment where appropriate, or another proportionate sanction have been considered?

Would retaining her employment have encouraged similar misconduct? Or would it have demonstrated that an employer can enforce workplace rules while recognising exceptional personal circumstances?

These are not easy questions.

But they are precisely the questions that make disciplinary decisions so challenging.

Case Study 2: R1,000, an IOU and a Desperate Escape

Now consider a completely different situation.

It is Friday afternoon, and a site manager is responsible for the cash held at her workplace.

She has just been beaten by her husband. She needs to escape and find safety for herself and her infant child.

She tries contacting company management, hoping someone can help. Unfortunately, no senior person is available to take her call.

She is frightened, injured and desperate to protect her child.

What would you do in her position?

She opens the safe, takes R1,000 without permission and leaves an IOU in its place. She uses the money to get herself and her infant child to safety.

When the matter reaches a disciplinary hearing, she pleads guilty. The physical effects of the assault are still visible.

The employer now faces a difficult decision.

The employee took money without authorisation. Leaving an IOU did not give her permission to take money. The employer also has legitimate concerns about cash security and the responsibilities attached to her position.

But this was not simply a case of taking money for personal gain without explanation.

She was attempting to escape domestic violence with an infant child. She had also tried contacting management before taking the money.

The labour consultant again recommended dismissal, citing consistency and the danger of setting a precedent.

No alternative, such as moving her into a position without cash-handling responsibilities, was offered.

The employee was dismissed.

Should the Circumstances Have Changed the Outcome?

Would you have reached the same decision?

Would the fact that she took money from the safe outweigh the circumstances surrounding her actions?

Or would you have considered her immediate safety concerns, her infant child, her attempts to contact management and her guilty plea?

Could demotion, a final written warning or another appropriate sanction have protected the employer's interests?

Perhaps dismissal was the appropriate outcome. Perhaps another sanction deserved consideration.

The important question is whether the decision was reached after weighing all the relevant circumstances.

Mitigation in South African Labour Relations: Compassion Is Not an Excuse

These two cases highlight an important principle in South African labour relations.

Considering mitigation does not mean ignoring misconduct. Nor does it mean that personal difficulties automatically excuse unacceptable behaviour.

Employers still need to protect their businesses, maintain workplace standards and ensure that employees understand their responsibilities.

However, finding an employee guilty does not necessarily answer the separate question of what sanction should follow.

That is where mitigation becomes important.

When considering an appropriate sanction, employers should examine several factors.

1. The seriousness of the misconduct

Was the offence serious enough to destroy the trust relationship? What risks did the employee's actions create for the business?

2. The employee's disciplinary record

Was this an isolated incident? Has the employee previously received warnings for similar misconduct?

3. Remorse and accountability

Has the employee accepted responsibility? Is there evidence of genuine remorse, or does the employee simply regret being caught?

4. Personal circumstances

Were there exceptional circumstances that materially influenced the employee's actions? Were those circumstances temporary, severe or beyond the employee's ordinary control?

5. Alternative sanctions

Could a final written warning, demotion or another appropriate measure address the misconduct without dismissal?

6. Consistency and fairness

Have similar cases been handled consistently? Are there meaningful differences between the circumstances that justify a different outcome?

These questions help employers make informed decisions rather than relying on automatic responses.

For businesses seeking practical HR services for South African SMEs, having a clear disciplinary procedure is essential. Managers need guidance on investigating misconduct, conducting fair hearings and considering appropriate sanctions.

A well-structured process also helps employers document their reasoning and explain why a particular decision was made.

Does Compassion Set a Dangerous Precedent?

This is often where the debate becomes heated.

Some employers worry that showing compassion will encourage other employees to break the rules. If one employee receives a lesser sanction, will everyone expect the same treatment?

It is a legitimate concern.

Workplace discipline cannot depend entirely on personal feelings. Employers need consistent standards and defensible decisions.

However, consistency does not always mean imposing identical sanctions.

Two employees may commit similar offences under very different circumstances. Those differences may be relevant when deciding what action is appropriate.

The key is to apply fair principles consistently while considering the facts of each case.

Imagine telling employees that personal circumstances will never matter. Would that approach encourage accountability, or would it create a workplace where people fear approaching management during a crisis?

Now imagine allowing every personal difficulty to excuse misconduct. Would that protect the employer or undermine workplace discipline?

Neither extreme offers a simple solution.

Fair discipline requires employers to consider both the misconduct and the circumstances surrounding it.

This is why practical HR support matters. Clear policies, consistent procedures and informed management decisions help businesses navigate difficult situations without losing sight of fairness.

How Can Small Businesses Make Better Disciplinary Decisions?

Large organisations may have dedicated HR departments and internal labour relations specialists. Smaller businesses often rely on managers who must balance several responsibilities.

That makes having the right HR systems even more important.

Here are four practical steps you can take.

Start with clear disciplinary policies. Employees should understand workplace rules, possible consequences and the procedures followed when misconduct occurs.

Train your managers. Managers need to understand the difference between establishing guilt and determining an appropriate sanction.

Document the decision. Record the evidence, relevant mitigating and aggravating factors, alternatives considered and reasons for the final outcome.

Seek professional labour advice when necessary. Serious misconduct and complicated personal circumstances may require specialist guidance before you make a final decision.

If you run a small business, you do not necessarily need a large HR department to establish sound workplace practices.

Practical DIY HR Packs South Africa can help you put essential policies, disciplinary procedures and supporting templates in place. These resources give managers a structured starting point for handling employee relations more consistently.

However, templates alone cannot replace careful consideration of individual cases. When the circumstances are complicated, obtaining appropriate Labour Advice South Africa can help you assess the risks before making a decision.

Mitigation or Not? What Would You Have Done?

Let's return to our two employees.

One was selling cigarettes while struggling with the deaths of two close family members. The other took R1,000 to escape domestic violence with her infant child.

Both employees were found guilty of misconduct.

Both employers had legitimate interests to protect.

Both cases presented extraordinary personal circumstances that deserved consideration.

But should those circumstances have changed the disciplinary outcomes?

Would you have dismissed both employees?

Would you have dismissed one but retained the other?

Would you have considered a final written warning, demotion or another appropriate sanction?

Or do you believe the seriousness of the misconduct made dismissal unavoidable?

There is no need to agree simply because the stories are heartbreaking. Equally, there is no reason to dismiss mitigation without examining the facts.

The challenge is finding the balance between accountability, workplace standards and humanity.

MITIGATION OR NOT? WOULD YOU HAVE FIRED THEM?

I would particularly welcome the views of HR professionals, labour consultants, business owners and managers.

Tell us what sanction you would have recommended in each case. More importantly, explain which factors influenced your decision.

Because sometimes, the most difficult part of managing people is recognising that the right decision is rarely as simple as it first appears.