The purpose of a disciplinary code and procedure is to regulate standards of conduct of employees within a company or organization. The disciplinary code serves as a guideline to provide for a fair and consistent handling of workplace discipline. The aim of discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace. This also creates certainty and consistency in the application of discipline.
The employer needs to ascertain that all employees are aware of company rules and reasonable standards of behaviour that are expected of them in the workplace. The employee needs to comply with the disciplinary code and procedures at the workplace. The employee needs to ensure that he/she is familiar with the requirements in terms of the disciplinary standards in the workplace.
Counselling versus Disciplinary Action
There sis a difference between disciplinary action and counseling. Counselling will be appropriate where the employee is not performing to an expected standard or is not aware of a rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned. Disciplinary action will be appropriate where a breach of the rule cannot be condoned, or where counseling has failed to achieve the desired effect. Before deciding of the form of discipline, management must meet the employee in order to explain the nature of the rule s/he is alleged to have breached. The employee should also be given the opportunity to respond and explain his/her conduct. If possible, an agreed remedy on how to address the conduct should be arrived at.
Forms of Discipline
Disciplinary action can take a number of forms, depending on the seriousness of the offence and whether the employee has breached the particular rule before. The following forms of discipline can be used (in order of severity):
Final written warning;
Suspension without pay (for a limited period);
Demotion, as an alternative to dismissal; or
The employer should establish how serious an offence is, with reference to the disciplinary rules. If the offence is not very serious, informal disciplinary action can be taken by giving an employee a verbal warning.
The law does not specify that employees should receive any specific number of warnings, for example, three verbal warnings or written warnings, and in the case of serious misconduct, a dismissal sanction can be meted out. Formal disciplinary steps would include written warnings and other forms of discipline listed above. A final written warning could be given in cases where the contravention of the rule is serious or where the employee has received warnings for the same offence before. It should be noted that the law does not specify that employees should receive any specific number of warnings.
An employee can appeal against a final written warning and the employer can hold an enquiry if the employer believes that it is only through hearing evidence that the outcome can be determined. Written warnings will remain valid for 3 to 6 months. Final written warnings will remain valid for 12 months. A warning for one type of contravention is not applicable to another type of offence. In other words, a first written warning for late-coming could not lead to a second written warning for insubordination.
Employees will be requested to sign warning letter and will be given an opportunity to state their objections, should there be any. Should an employee refuse to sign a warning letter, this does not make the warning invalid. A witness will be requested to sign the warning, stating that the employee refused acceptance of the warning.
Dismissal is reserved for the most serious offences and will be preceded by a fair disciplinary enquiry, unless an exceptional circumstance results in a disciplinary enquiry becoming either an impossibility (e.g the employee absconded and never returened) or undesirable (e.g holding an enquiry will endanger life or property).
When can employer hold a formal enquiry?
An employee may be suspended on full pay pending an investigation especially in instances where the employee’s presence may jeopardize any representations. The employer should give the employee 48 hours or more notice of the enquiry, and the letter should include:
The date, time and venue of the hearing;
Details of the charges against the employee; and
The employee’s rights to representation at the hearing by either a fellow employee or shop steward.
Note: If the employer intends disciplining a shop steward, the employer must consult with the union before serving notice to attend the enquiry on the intention to discipline the shop steward including the reasons, date and time.
Who should be present at the enquiry?
A management representative.
The employee representative.
Any witnesses for either parties.
An interpreter if required by the employee.
How should a hearing be conducted?
The employer should lead evidence. The employee is then given an opportunity to respond. The chairperson may ask any witnesses questions for clarification. At the end, the chairperson decides whether the employee is guilty or not guilty. If guilty, the chairperson must ask both parties to make submissions on the appropriate disciplinary sanction. The chairperson must then decide what disciplinary sanction to impose and inform the employee accordingly.
The employee should be informed that s/he has the right to appeal. If the company does not provide for an appeal procedure, the employee must be reminded that he/she could take the case further to the CCMA or bargaining council. Failure to attend the hearing cannot stop the hearing form continuing except if good cause can be shown for not attending.
Note: This procedure should not substitute disciplinary procedures subject to collective agreements.
Parties can also request, by mutual consent, the CCMA or a bargaining council to appoint an arbitrator to conduct a final and binding disciplinary enquiry. The employer would be required to pay a prescribed fee. (Labour legislation is not specific in terms of the steps to follow when conducting a disciplinary enquiry. These procedures should therefore merely serve as guidelines for parties).
Code of Good Practice for Dismissal: Schedule 8 of the Labour Relations Act of 1995, as amended.
Labour Relations Act – section 188A.