AN EMPLOYEE may regret having committed an act of misconduct, but they may not be remorseful for having done so.

This distinction is important when considering both in the context of mitigating circumstances after an employee has pleaded guilty or been found guilty. Item 3(5) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) reads: “When contemplating whether 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.”

The same considerations would apply in the selection of a sanction in lesser offences. Regret and remorse are also factors to be considered when establishing mitigating circumstances before deciding on an appropriate sanction to be imposed, but they are quite different concepts, which should not be confused. This was highlighted in the Supreme Court of Appeal (SCA) judgment involving The State v Phakamani A Nkunkuma & 2 others (SCA: 101/2013), which held that: “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. 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.” In The Foschini Group (Pty) Ltd v Marie Fynn (Labour Appeal Court: DA1/04), it was held that: “It would be difficult for an employer to re-employ an employee who has shown no remorse. Remorse is much, much more than regret. You can regret committing the act of misconduct, but not be remorseful.”

As was put in the Labour Court in Toyota SA Motors (Pty) Ltd v the CCMA & 3 others (Case No: D600/11) “remorse is a complex emotion, a mixture of shame and regret for the apparent victim. But supposed remorse may as well be linked to the perpetrator’s own sense of regret that it happened at all and that he got caught.” Remorse was also dealt with in the Labour Court judgment in Blitz Printers v CCMA & 1 other (JR 1782/2012), where it was held that: “The fact that an employee shows remorse for his or her actions and takes responsibility for his or her actions may militate, depending on the circumstances, against imposing the sanction of dismissal. The converse also applies, dismissal may be an appropriate sanction where the employee commits an act of dishonesty, falsely denies having done so and then shows no remorse whatsoever for having done so. It is also important to point out that the respondent had persisted with her lying not only in the course of the investigations, but also at her disciplinary hearing and in her sworn testimony before the arbitrator.”

Remorse can be likened to contrition. A lack of remorse will typically confirm that the trust relationship is broken beyond repair, thereby justifying a sanction of dismissal. It should also be borne in mind that an admission of guilt does not, in and of itself, amount to an expression of remorse. As noted in the Labour Court judgment in Bongani Wellcome Rakhivhani v South African Police Services & 2 others (Case number: CJR1158 /13): “Genuine remorse contemplates an unconditional acknowledgement of the wrongdoing, a plea for forgiveness and an undertaking that the misconduct will not be repeated if the employee is permitted to remain in the fold of the employment relationship.”

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5375 or email [email protected].

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