The main purpose of a disciplinary code and procedure is to specify and regulate the standards applicable in the workplace. The disciplinary code is important to set the ground rules for acceptable and non-acceptable behaviour in the workplace.
Discipline, certainty and consistency throughout the whole company or organisation can be achieved in this manner. If someone does not adhere to the disciplinary code and it results in unacceptable behaviour, a disciplinary procedure is required to deal with this behaviour in an appropriate and justified manner.
ROLES OF THE PARTIES INVOLVED
The two parties to the disciplinary code are the employee and the employer. The role of the employer is to ensure that all employees are made aware of the disciplinary code and the standards set around behaviour in the workplace. The employer specifies expected behaviour in the organisation.
The second party is the employee who is expected to comply with the disciplinary code and disciplinary procedures. It is also the responsibility of the employee to ensure that he or she is knowledgeable in terms of the disciplinary code and procedures. The employee should at all times be aware of expected and acceptable behaviour by knowing the standards set for the workplace.
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WHEN IS A DISCIPLINARY PROCEDURE REQUIRED?
Disciplinary action is recommended when a rule is breached, which cannot be condoned, and is considered serious and unacceptable. Disciplinary action can also follow an unsuccessful counselling process.
Disciplinary action is regulated by the Labour Relations Act and requires both procedural and substantive fairness from the employer.
Employers should familiarise themselves with the procedural requirements for a fair hearing or utilise the services of their employer’s organisation in this regard.
Depending on the severity of the breach, an employer may proceed with a formal disciplinary enquiry which may result in a sanction ranging from a verbal warning to a dismissal. It is imperative for an employer to be able to determine which sanction would be appropriate under which circumstances.
Normally progressive discipline, i.e verbal, written warnings, will be appropriate for less serious offences while dismissal would only be appropriate for repetitive or serious misconduct.
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DISCIPLINARY ACTION AND DISMISSALS
The Labour relations act, 66 of 1995, (the Act) is the most prominent piece of legislation dealing with the different type of dismissals and how they should be conducted. The Act through a number of prerequisite requirements and codes provide the procedural and substantive framework for a fair dismissal. The Act differentiates between a number of different types of dismissals:
Disciplinary action refers to the disciplinary procedure and substantive reasoning that must be employed when an employee commits misconduct. Misconduct happens when an employee transgresses the employer’s rules as encompassed in the employer’s disciplinary code. This misconduct is viewed as a breach of contract by the employee as the employee is not complying with his contractual duties or the policy and procedures of the employer.
Disciplinary action, like any dismissal, need to comply with two requirements in order to be rendered fair. These are procedural and substantive fairness:
Procedural Fairness refers to the manner in which the disciplinary action is conducted by the employer. The procedural aspect of disciplinary action aims to encompass the rules of natural justice, most importantly the right to be heard. Procedural fairness dictates, in short, that an employee has the right:
- To receive sufficient notice of a disciplinary hearing to allow him to adequately prepare
- To receive sufficient information in respect of the alleged misconduct to be able to understand and answer to the allegations
- To be represented by a union representative (shopsteward) or co-employee
- To hear the allegations against him and provide his version
A disciplinary hearing is not the same as a criminal trial as an over formalistic approach is not required. A hearing which provides the employee with the aforementioned rights would suffice in the majority of cases unless the employer prescribes a specific disciplinary procedure, in his code of conduct, policies or contract of employment, which afford more rights to the employee.
It is not always necessary to schedule a disciplinary hearing where the misconduct is not of a serious nature and the result will only be a warning. It will be sufficient to engage the employee, inform him of the allegations against him and request reasons as to why a warning should not be issued. It should however be remembered that in the case of repeat offender, less serious misconduct may lead to dismissal if the employee has already been warned in order to rectify his behavior, but he has not done so. In this instance a hearing will again be required before a dismissal may be effected.
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Substantive fairness deals with the reasons for the dismissal or other disciplinary action. Differently put is the misconduct of such a serious or repetitive nature that it warrants the sanction imposed? The Act provides guidelines in the Code of good practice on dismissals (The Code). Although these codes are not technically law, it has been accepted by court and dispute resolution forums alike as the rules pertaining to substantive fairness. The Code sets out the following principles in respect of substantively fair disciplinary action.
“Did the employee in fact contravene a rule or standard regulating conduct in the workplace?”
The question therefore is twofold. Did the rule that that the employee allegedly contravened actually exist in the employer’s code of conduct, disciplinary code, policies, contract of employment or common law? Common law rules are rules that are so well known that it is not necessary for the employer to include it in its policies or codes, e.g. theft. An employee cannot be guilty of misconduct if the rule he supposedly contravened did not exist. Secondly, did the employee in fact contravene such rule? If it has been determined that a rule has in fact be broken, the following factors must be considered.
“Was the rule or standard valid or reasonable?”
An employee has the right to refuse to comply with a rule or instruction if such rule is invalid. This will be for example where the rule is unlawful e.g. an employee may not be required to work 16 hours a day, 7 days a week. An employee may also refuse to comply with a rule if it is, objectively speaking unreasonable. This may be the case where an employer changes working times knowing full well that some employees will not be able to acquire transport for the new working hours.
“Was the employee aware or could reasonable be expected to have been aware of the rule or standard?”
It is important for employers to make employees aware of the disciplinary codes, policies or other rules in the company. The same principles in respect of common law rules finds application here.
“Was the rule consistently applied?”
Employers have to ensure that all employees who contravened the same rule are treated in the same manner. Should employees be treated differently, for example receive different sanctions for the same misconduct, the employer will have to justify this decision. Such justification might include previous transgressions, length of service, remorse etc.
“Was the sanction an appropriate sanction for the contravention?”
The employer must indicate that the misconduct was of such a serious nature that he can n longer trust the employee and may therefore dismiss him, or in the case of repetitive misconduct, that the employee, despite previous warnings did not change his ways. This is an objective test and the subjective view of the employer plays no role. It is important to note that the employer carries the burden of proof to prove that, on a balance of probabilities, his version is more likely true than that of the employee.
Incapacity dismissals, together with retrenchments, form part of the group of so called “no-fault’ dismissals. The reason for this is that the possible dismissal is not due to the fault of or misconduct committed by an employee but by virtue of other reasons. One process of Incapacity is Poor work performance:
Poor work performance is a process born from the fact that every person does not have the required ability or aptitude to perform well in every occupation. The Procedural fairness requirements in Poor work performance dismissals is less onerous than in the instance of dismissals for misconduct. Poor work performance aims to first address the shortcomings of an employee and, where the shortcomings cannot be satisfactorily addressed, plot the process by which such an employee can be terminated. The Code determines the following process for a procedurally and substantively fair dismissal based on Poor work performance.
For a Poor work performance incapacity dismissal to be procedurally fair:
- The procedure should include an investigation to determine the reasons for the unsatisfactory performance
- The employer should consider other options, short of dismissal, to remedy the matter
- The employee should have the right to be heard
- The employee may be assisted by a trade union representative or co-employee.
Substantive fairness requirements for Poor work performance incapacity entails the following:
- Did the employee fail to meet a performance standard?
- Was the employee aware or could he be reasonable expected to have been aware of the performance standard?
- Did the employer provide appropriate evaluation, guidance, instruction or training?
- Was the employee given a fair opportunity to meet the performance standard?
- Is dismissal an appropriate sanction?
NEASA assists employers with Dismissals, Disciplinary Procedures and the Disciplinary Code, Disicplinary Action, and Poor Work Performance.
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