One often hears people say, “it does not help to take disciplinary action against staff who do not conform to the Company rules as they will go to the CCMA where the hearing will be overturned.”
It is true that many hearings are overturned by the CCMA. The main reason being that the process was not fair, or the procedure was not correct / fair.
Having said that, the employer has a duty in terms of various legislation to maintain discipline in the workplace.
In terms of the Labour Relations Act (LRA) a person can be dismissed for three basic reasons:
a. For “conduct” which means for unwanted behavior for which the employee can be held accountable and which he / she could have avoided.
b. For “capacity” which refers to the employee’s ability to do the work adequately.
c. For “operational requirements” because of e.g., restructuring, or economic reasons, or the introduction of technology etc. This is commonly known as retrenchments.
Each of these three processes have a set of steps that need to be followed to ensure fairness and procedural correctness.
I would like to look at “conduct” and leave the others for later.
An employee’s duty is to obey reasonable and valid instructions. This lies at the core of any employment relationship. Obedience implies discipline, while discipline implies rules and for these rules to be effective there must be power to impose sanctions on those who do not want to conform / obey. It is the employer’s duty and responsibility to maintain discipline in the workplace.
In order to enforce discipline, the Company must have proper rules and procedures. This includes a well thought out disciplinary and grievance procedure which should include a counselling procedure. These rules must create certainty and consistency in the application of discipline.
The second point I would like to make is that disciplinary action should be regarded as a corrective rather than a punitive process. Dismissal would be the final step in the entire process.
When chairing a disciplinary hearing the chairman must ensure that:
a. He / she is totally impartial.
b. The accusation against the employee is in fact a real accusation.
c. The accusation relates to the employee’s conduct (at work).
d. The employee had a choice in his / her conduct.
e. The conduct was done willingly.
f. The procedure followed is a fair procedure. This includes that the employee is given an interpreter (reliable one), that he / she has a representative assisting him / her, has a chance to state his /her side of the story, and to cross-examine the employer representative as well as all witnesses. It is also important that the employee understands each step. Should he / she be found guilty, the employee must be given a chance to submit mitigating factors. Finally, the employee must be informed about his options to appeal.
g. The sanction must fit the transgression and must be consistent.
Some of the common mistakes committed causing the process to be overturned are:
1. The Chairman is often an employee of the Company. At the CCMA it is often stated that the Chairman was not impartial to the employee because of . . . . . . (he had an argument with the employee some time ago, or he showed his dislike to the employee because he never greets him etc. – sounds very stupid but the doubt is brought to the CCMA). My recommendation is to use an external consultant.
2. The misconduct is not a real misconduct, or it is very vague (e.g., he never listens instead he did not listen then, then, and then (date, time and incident), or a teacher was recently disciplined for singing in a church choir. The choir got paid and the employer took it that she was moonlighting. On appeal, the sanction was set aside by the Arbitrator as the teacher and other choir members did not receive a cent.
3. The Company has very vague or poorly written procedures or none at all.
4. The procedure followed was not fair or was procedurally incorrect.
5. The sanction was too harsh for the transgression
6. The sanction was not applied consistently.
Wilbrink and Associates can assist Companies in all of the above problems and many more.
For more information we would like to refer you to some other articles written by myself which are on our website www.wilbrink.co.za
Should you require more information, please go to our website: www.wilbrink.co.za or alternatively give me a call on 031 – 266 9035 or my cell 083 265 3805 or e-mail me at wilbrink@icon.co.za