Unforutnatley, no matter how hard we try to apply corrective and progressive discipline, it is often inevitable that we will be forced to take formal disciplinary action against an employee at some stage. This can be a very daunting and stressful task – especially if, as a line manager, it feels like a personal attack on the accused employee.
Disciplinary enquiries should never be used to further personal agendas or vendettas and, in my experience, should only be reserved for cases of serious misconduct which would likely lead to a dismissal or a minimum sanction of a final written warning. For lesser transgressions, the LRA does permit corrective and progressive discipline and specifically states that ‘formal procedures do not have to be invoked each time a rule is breached or a standard is not met.’
When a workplace rule is breached though, and you do take formal disciplinary action, one of the most common defenses that is offered by accused employees, is “I didn’t know”. The challenge for you as a complainant of course, is that you have to prove that the employee was aware of the rule, or that they could reasonably have been expected to be aware of the rule – regardless of their allegations to the contrary.
Most line managers overlook that very important phrase in the LRA ‘could reasonably have been expected to be aware’ and they start to panic when they realise that they have no proof that an employee was trained or that an employee ever received a copy of a disciplinary code or employee handbook.
All is not lost and the LRA clearly provides protection for employers who find themselves in this position. All you have to prove is that the accused could ‘reasonably’ have been expected to know. And there are a few ways of doing this:
Common Law Provisions: common law forms the basis of our law and some of the principles relevant to the workplace recognise that all employees have the following responsibilities towards their employer:
– they are to place their services at the disposal of their employer and may not absent themselves from the workpalce without permission or without showing good cause;
– they are required to obey all lawful and reasonable instructions issued to them by their employer;
– they are required to perform their duties and tasks at a standard that is acceptable to the employer; and
– they are required to always act in good faith and in their employer’s best interest.
Therefore, in terms of these common law provisions, it is generally expected and accepted that all employees would comply with these most basic of responsibilities towards their employer. Therefore, any employee should know that non-compliance would be unacceptable and would have repurcussions.
Evidence of past compliance: many employees, despite their arguments to the contrary, will have obeyed certain workplace rules consistently, in the past (i.e. timekeeping or completing leave forms etc). Make sure that you obtain evidence of past compliance because you can use this in the event that the employe pleads ignorance of the existence of the rule or standard in their hearing.
Contracts of employment: often overlooked, contracts of employment may hold the key to proving awareness of certain workplace rules and standards of conduct, including, but not limited to timekeeping, process to be followed in the event of absence, reporting misconduct, acting in the employer’s best interests and becoming familiar with all relevant workplace rules and standards.
So, the next time you need to prepare for a disciplinary enquiry, consider the facts that you need to prove in any hearing (see attached document for guidelines) and consider what the likely defenses are going to be. This enables you to be slightly more thorough in collecting documentary evidence and selecting witnesses to testify and you may just find the evidence that you need, right under your nose.
To learn more about disciplinary enquiries, please visit our website www.hartungassociates.biz or attend one of our unit-standard aligned training programmes.
Next event: 7-9 December 2009. Labour Law for HR Practitioners.What you need to prove in a DE.pdf