DISCIPLINARY CODE & DISCIPLINARY PROCEDURE

WHEN IS A DISCIPLINARY PROCEDURE REQUIRED?

Disciplinary procedures should be followed where Disciplinary action becomes necessary. Thus, disciplinary action is usually recommended when an employee breaches a stringent rule. In other words, a serious and unacceptable breach. In addition, disciplinary action can also follow an unsuccessful counselling process.

The Labour Relations Act regulates and sets the standards surrounding Disciplinary actions. A successful disciplinary action requires both procedural and substantive fairness from the side of the employer.

Therefore, employers should familiarise themselves with the disciplinary procedural requirements for a fair hearing. However, we highly recommend utilising the services of a professional employer’s organisation like NEASA for a successful outcome.

Depending on the severity of the breach, an employer may proceed with a formal disciplinary enquiry. This may result in a sanction ranging from a verbal warning to a dismissal. Therefore, it is imperative for an employer to be able to determine which sanction would be appropriate under which circumstances.

For example, progressive discipline, i.e verbal, written warnings, are usually appropriate for less serious offences. On the other hand, dismissals are usually only appropriate for repetitive or serious misconduct.

Contact NEASA for assistance with your Disciplinary Procedure

The Labour relations act, 66 of 1995, (the Act) is the most prominent piece of legislation dealing with the different type of dismissals and the manner of conducting them. More specifically, the Act provides the procedural and substantive framework for a fair dismissal. For instance, the Act differentiates between a number of different types of dismissals:

A DISCIPLINARY ACTION

Disciplinary action refers to the disciplinary procedure and substantive reasoning employed when an employee commits misconduct. Misconduct happens when an employee transgresses the employer’s rules as encompassed in the employer’s disciplinary code. Therefore, an employer views misconduct as a breach of contract by the employee. It is a breach, because the employee is not complying with his contractual duties or the policy and procedures of the employer. A fair Disciplinary action, as with any dismissal, needs to comply with two requirements. These two requirements are procedural and substantive fairness:

THE DISCIPLINARY PROCEDURE

PROCEDURAL FAIRNESS

Procedural Fairness refers to the manner in which the employer conducts the disciplinary action. The procedural aspect of disciplinary action aims to encompass the rules of natural justice. Most importantly, the right to be heard. In short, Procedural fairness dictates that an employee has the right to:

• Receive sufficient notice of a disciplinary hearing to allow him to adequately prepare
• Receive sufficient information in respect of the alleged misconduct to be able to understand and answer to the allegations
• Be represented by a union representative (shopsteward) or co-employee
• Hear the allegations against him and provide his version

DISCIPLINARY HEARING

A disciplinary hearing is not the same as a criminal trial as an over formalistic approach is not required. Thus, a hearing which provides the employee with the aforementioned rights would suffice in the majority of cases. However, it might not suffice if the employer prescribes a specific disciplinary procedure in his code of conduct, policies or contract of employment. In this case, more rights are afforded to the employee resulting in a more formal hearing.

It is not always necessary to schedule a disciplinary hearing if the misconduct is not of a serious nature. If 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. However, in the case of a repeat offender, less serious misconduct may eventually lead to dismissal if the employee has already been warned multiple times to rectify his/her behavior. In this instance a hearing will again be required before a dismissal may be effected. Regardless, for a successful dismissal, an employer has to follow the correct Disciplinary Procedures.

If you require legal assistance with Disciplinary Procedures, Actions or hearings, take a moment to view our Labour Services

SUBSTANTIVE FAIRNESS

Substantive fairness deals with the reasons for the dismissal or other disciplinary action. In other words, you should ask whether the misconduct is 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?”

Here, the question 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. For example, theft or destruction of property.

Firstly, 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 a rule has been 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. For example, where the rule is unlawful. An employer may not require an employee 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. For example, where an employer changes working times after knowing that some employees will not be able to acquire transport for the new working hours.

“Could the employee reasonable be expected to have been aware or were they aware of the rule or standard?”

It is important for employers to make employees aware of the disciplinary codes, policies, disciplinary procedures, and other rules in the company. As before, the same principles in respect of common law rules finds application here.

“Was the rule consistently applied?”

Employers have to treat all employees who contravened the same rule equally. However, if an employer treat some of the employees differently, the employer has to justify the reasoning and decision making. For example, different employees receive different sanctions for the same misconduct. 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 no longer trust the employee and may therefore dismiss him. Likewise, in the case of repetitive misconduct, where the employee ignored previous warnings and did not change his ways. However, this is an objective test. Therefore, the subjective view of the employer plays no role. It is important to note that the employer carries the burden of proof. Thus, it is on the employer to prove that his version is more likely true than that of the employee. In summary, the above questions as well as whether or not the employer follows the correct disciplinary procedures, determines the outcome of a dismissal.

DISCIPLINARY PROCEDURE & DISMISSALS

Incapacity

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. For example, poor work performance aims to first address the shortcomings of an employee. Then, where the shortcomings cannot be satisfactorily addressed, the process by which such an employee can be terminated is plotted. The Code determines the following disciplinary procedure 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
• Employer should consider other options, short of dismissal, to remedy the matter
• Employee should have the right to be heard
• 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.