Why does disciplinary action fail at some companies? 3


 

The purpose of disciplinary codes and procedures 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.

Parties Obligations

The 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 will 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.

Employee need to comply with the disciplinary code and procedures at the workplace but in order to do so 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 and counselling  

The term “Discipline” to my way of thinking should be removed entirely. To me 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.

Perhaps the term to be used can be altered to suit the required outcome e.g. remedial action, remediation process or similar. Any ideas?

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 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. 

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.

© Des Squire (Managing Member)

AMSI and ASSOCIATES cc

Cell 0828009057

des@amsiandassociates.co.za

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3 thoughts on “Why does disciplinary action fail at some companies?

  • sylvia hammond

    Hi Des, yes I do know that many companies prefer to have an internal appeal – as a way of sorting out what might have gone wrong & not airing their dirty linen in public.  I also used to be of that opinion. 

    However, seeing that when/if the dispute gets to CCMA then it’s a hearing de novo – and everything has to be heard all over again before the Commissioner, it does seem a waste of expensive company time. 

    At a recent update it was advised that even the Chair of the original enquiry is irrelevant at the CCMA because it doesn’t matter what he/she thought but rather it matters what the Commissioner makes of the evidence presented.

    I should have added that there is an obligation to advise the employee that they have a right to refer a dispute to the CCMA.

    Agree on understanding the policies – really it should be done as part of the induction.

  • Des Squire Post author

    Correct Sylvia. however I still believe the chairperson should advise the employee of his/her right to appeal. This I feel is required in terms of Chapter VIII section 191.b and the rights of the employee.

    Personally I am still of the opinion that all appeals should first be heard internally and if this is the case then that must be stated in the disciplinary policy and procedures of the company. What is more important is the employees must be given some training to enable them to understand the policies and procedures.    

  • sylvia hammond

    Hi Des, thanks for this post – just to clarify there is no requirement for an appeal in the Labour Relations Act.  It may be an internal company requirements as many companies still use old codes and procedures that have not been updated but an internal appeal is not a legal requirement.