Let’s do away with disciplinary hearings altogether

The purpose of disciplinary policies and procedures together with the code of conduct is to regulate standards of conduct and behaviour of employees in a company.

The aim of discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace.

The term “Discipline” should be removed entirely. It denotes a very 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 I feel the use of the word is inappropriate.

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. However formal disciplinary action is not necessary.

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 e.g. counselling, verbal warning, written warnings and eventually 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 of a formal or informal nature.

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 knew 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 very 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. Following an appeal if the decision is upheld, the employee may refer the matter to the CCMA within 30 days.

A HEARING IS NOT COMPULSORY

In terms of the LRA code of good practice; dismissal – it is not necessary to have a formal hearing even in the case of potential dismissal. In a recent case brought before the labour court this was upheld. The court ruled there was no need for a formal disciplinary hearing. The procedures were originally intended to be fairly simple. This according to the court is especially the case when dealing with senior management employees.

Once an employee is advised of the allegations and given sufficient opportunity to respond to the allegations then procedurally everything is acceptable according to the court.

So in summary, once procedural fairness exists together with substantive fairness then we do not have to stick to a rigid court like disciplinary procedures.

© Des Squire (Managing Member)
AMSI and ASSOCIATES cc
des@amsiandassociates.co.za

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