Discipline is, for most people, a fairly unenjoyable but necessary part of labour relations. It is essential for a smooth-running business to have some form of the disciplinary procedure.
South Africa labour legislation does not set out any specific steps that need to be taken when conducting a disciplinary enquiry. But the following can be taken as a guideline for how to proceed. Please note that the following procedure would not substitute any collective agreement on disciplinary procedures. Parties may also, by mutual consent, approach the CCMA or bargaining council for arbitration.
It is important to have clear rules and to communicate those rules to your workforce. Some rules may not need to be specified as they could be seen as obvious. For example, breaking the law by stealing from the workplace or assaulting a colleague or superior are not really necessary to specify, as everyone should already know that such behaviour is not permitted.
It is good to keep the following in mind when engaging in disciplinary procedures:
- You should not discipline yourself when you are angry or upset.
- Discipline should be applied as soon as possible after the relevant incident.
- All other possible outcomes should be explored before dismissal is applied.
- Gather all of the facts, and ensure that proper procedure is followed.
- If disciplining a union representative or shop steward, then the union needs to be consulted and informed before going forward with any disciplinary action.
The difference between counselling and disciplinary action
The first step should always be to counsel the employee. This is appropriate when the employee is not performing to the expected standard or is not aware of a particular rule, or where a breach is fairly minor. The idea is to make sure they understand that they are not performing as expected or to explain and ensure they understand the minor breach that they have made, and to bring their performance or behaviour up to the expected standard.
The following is a recommended course of action for counselling an employee:
- Invite the employee to a meeting and ensure they know what it is about.
- Ensure a private and uninterrupted meeting.
- Draw the employee’s attention to the problem and ensure that you both agree that a problem exists.
- Ask the employee to explain their misconduct.
- Ask the employee if they have any ideas of how to correct the problem.
- Offer your suggestions and try to reach a consensus on the way forward.
- Agree on each party’s role going forward and set a date for when you will meet again to reassess the situation.
- Keep a note of the meeting and the agreement reached.
- Meet again on the agreed date to see if the problem has been remedied. If not, then disciplinary action should be considered.
Disciplinary action is appropriate where the breach of conduct cannot be condoned, or where previous counselling has not solved the problem.
Kinds of disciplinary action
There are a number of forms of disciplinary action that can be applied, which would depend on the severity of the offense and whether the employee has broken the same rule in the past. Before deciding on a form of discipline, a meeting should be arranged between the employee and management in order to explain the rule which has allegedly been breached. The employee must be given a chance to respond and explain their conduct. This meeting should preferably arrive at an agreement on how to remedy the situation.
The following forms of discipline can be used (in order of severity):
- Verbal warnings
- Written warnings
- Final written warning
- Suspension without pay (for a limited period)
- Demotion, as an alternative to dismissal only
The employer must establish the severity of the infraction while referring to the company’s rules. If the offence is not serious, then an informal verbal warning may be given. The law does not specify any particular number of warnings, and dismissal can be applied to the first offence for a serious enough breach.
A final written warning can be applied when the contravention is serious, or if the employee has received warnings for a similar offence in the past.
An employee can appeal against a final warning, and the employer can hold a formal enquiry if they believe that it is only through such a process that the outcome can be determined.
A verbal warning is usually valid for 3 months. A written warning is normally valid for 6 months. After this time has elapsed, the warning should be removed from the employee’s records. A warning for one kind of infraction cannot be applied to another, different type of offence.
Employees should always be requested to sign their warning letters and given a chance to state their objections if any. The letter is still valid if the employee refuses to sign it. In this case, a witness should sign and state that the employee refused to do so.
It is recommended that employers keep records for each employee, specifying the nature of any breaches of conduct, the actions are taken, and the reasons for these actions.
Dismissal should be reserved for the most serious of offences, and must be preceded by a disciplinary enquiry, unless it is impossible or undesirable to hold such a hearing, for example where the employee has absconded, or where the enquiry would be likely to endanger life or property.
Formal Disciplinary Enquiries
An employee may be suspended on full pay pending a hearing, especially in cases where the employee being on-site may jeopardise the investigation of the incident.
The employer must give the employee at least three days’ written notice of such a hearing.
The letter should include:
- The date, time, and venue of the hearing
- Details of the charges
- The employees right to representation (by a fellow employee or union representative if applicable) should also be explained
Remember that if the employer is intending to discipline a shop steward, then the union must be notified before serving notice to the employee.
The following people should be present at a disciplinary hearing:
- A chairperson to chair the hearing. This should not be someone who has a personal interest in the outcome.
- A management representative.
- The employee is disciplined.
- Any representatives of the employee.
- Any witnesses for either side.
- An interpreter if required.
The employer should lead with evidence first, followed by the employee. The chair may ask any questions of witnesses for clarification. Once both sides have presented evidence and witnesses have been questioned, then the chair should decide on a verdict of guilty or not guilty.
They will need to decide:
- If a rule has been broken
- If the rule was valid and reasonable
- If the employee knows about or should have known about the rule
- If the employer has been constant in applying the rule
If the verdict is guilty, then the chair may ask both sides for input on the appropriate disciplinary measures. The chair makes the decision on what measures to implement and informs the employee. The employee should be informed that they have the right to appeal. If there is no appeal procedure, then the employee may take the case to the CCMA or bargaining council.
A failure to attend a disciplinary hearing is not caused to stop the hearing unless a valid reason for their absence can be provided.
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