Des Squire
The purpose of disciplinary codes and procedures is to regulate standards of conduct and the behaviour of employees within a company. The aim of discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace.
Parties’ obligations
An employer needs to establish that all employees are aware of the rules and standards of behaviour that are expected of them in the workplace. Management should ensure all employees are trained and have the code of conduct, disciplinary code, code of ethics and disciplinary process explained in detail.
Giving employees a copy of the various codes and having them sign for receipt does not prove they understand the content or that they have ever read the documents. This could be a problem at a later stage, particularly when disciplinary action is taken and the employee says he/she did not know the rule existed or what the required behaviour was.
Employees need to comply with the disciplinary code and procedures of the workplace - but in order to do so, they must understand them. Employees also need to ensure they are familiar with the requirements in terms of the disciplinary standards in the workplace.
Disciplinary action versus counselling
Arguably, the term “discipline” should be removed entirely, as it denotes a highly negative situation. Employees need to be re-assured that the process involved is a corrective counselling process designed specifically to assist the employee. The intention is to take some form of remedial action or to establish a training need. Initially “discipline” should not be necessary and for this reason, the use of the word is inappropriate.
Perhaps the term to be used can be altered to suit the required outcome, for example remedial action, remediation process, or similar.
There is a difference between disciplinary action and counselling. Counselling will be appropriate where the employee is not performing to a standard or is not aware of a rule regulating conduct, or where the breach of the rule is relatively minor and can initially be condoned.
Stronger and more structured disciplinary action will be appropriate where a breach of the rule cannot be condoned any longer, and where counselling has failed to achieve the desired result.
Before deciding on the form of discipline, management should meet with the employee to explain the nature of the offence or the rule that may have been broken.
The employee should be given an opportunity to respond and explain his/her conduct. If possible, an agreed remedy on how to address the conduct should be arrived at.
Misconduct is one of the grounds recognised by law that may give reason for the dismissal of an employee. The law promotes the principle of progressive discipline. This means the employer should make every effort to correct the employee’s behaviour by means of progressive remedial action (for example counselling, verbal warning, written warnings), before eventually considering dismissal. Dismissal should be considered the last resort.
The Code of Good Practice on dismissal sets out guiding principles, when instituting fair and reasonable procedures.
Substantive Fairness
Making a decision on the substantive fairness of a disciplinary process should be based on the following questions:
- Did the employee break a rule of conduct in the workplace?
- Was the rule valid or reasonable?
- Did the employee know about the rule or can it be assumed he/she should have known about the rule?
- Has the employer been consistent in applying the rule?
- What is the appropriate and fairest action to take against the employee for breaking the rule?
- What is the sanction likely to be?
Repeated offences would constitute enough grounds to justify dismissal. For a first offence, a dismissal may be appropriate if the offence is of a serious nature, or one that might render the continuation of employment intolerable, or which might have impacted dramatically on the trust relationship.
Procedural fairness
In addition to substantive fairness, an employer is required to follow fair procedure. There should be an investigation into the alleged misconduct, and the following requirements should be met:
- The employee must be informed of the breach of conduct, or of the charges in a manner she/he can understand. The employee should be given sufficient time to prepare for the hearing.
- The employee must be given a chance to state his/her case.
- The employee has the right to be assisted by a fellow employee at a disciplinary hearing (not at a counselling session).
- After the inquiry, the employer should notify the employee in writing of the decision with clear reasons.
- If the employee is not satisfied with the outcome of the hearing, he/she has a right to appeal. The chairperson should inform the employee of his/her right to appeal. If the decision is upheld following an appeal, the employee may refer the matter to the CCMA within 30 days.
Des Squire is a managing member at AMSI and Associates.