Neale Quilliam – Associate

It must be generally accepted that it is the employer who holds the right to enforce and maintain discipline in the workplace.  This is mainly as a consequence of the duty of an employee to obey all lawful and reasonable instructions in the workplace and to not commit any form of breach of the contract of employment or the rules and regulations of behaviour as determined by the employer in the conducting of the business of the employer.

Mainly, the employer’s rights in matters of discipline are contained in the Labour Relations Act 66 of 1995 (as amended). In this Act, there is a section on the Code of Good Practice and if the employer does not have its own codes and rules, then this section is applicable.

This concept of discipline and rules and regulations as set and determined by the employer for what it deems as acceptable behaviour of its workforce in its workplaces, is a vast subject, so suffice it to say that we’ll accept that an employer has developed and published for all to see and know, its Codes of Conduct, Rules and Regulations, Collective Agreements, all determining what is acceptable behaviour within its premises,  as well as the Procedures for dealing with behaviour that is deemed to be unacceptable.  Of course, these rules will differ markedly across all employers and will vary according to the nature of the business of the employer, so it would be an impossible task to attempt to detail these here.

It is common cause that the employer holds the right to discipline its own employees for any breach of behaviour, or to use the correct term misconduct,  that the employer considers unacceptable.

It is standard practice that the employer must ensure that its rules and regulations are well published within the business and are known by all employees.

These codes of conduct, rules and regulations cannot cover all and every form of misconduct that the employer will need to address, so it is commonly accepted that the general norms and behaviour that society does not accept are also included/implied, albeit not stated in the employer’s documentation.

So, the generally accepted procedure for dealing with misconduct in the workplace is as follows;

• Misconduct in the workplace is revealed/identified by an employee or group of employees.
• This misconduct is referenced against the employer’s codes and rules or societal norms.
• Management in charge of dealing with such misconduct decide on the seriousness of the misconduct which will then determine the procedure to be followed (generally)
  • meet and warn verbally, followed up by a letter,
  • meet and issue a written warning,
  • hold a formal hearing and issue a final written warning,
  • convene a formal hearing and proceed to ask for dismissal. This is the most serious of the procedures and must follow the correct protocols and requirements for such a procedure; these are set out in the Labour Relations Act mentioned above.

A formal hearing which could result in a dismissal usually follows the same procedures as a trial in a court of law.

It is proper practice for the employer to keep records of all disciplinary procedures against employees of their personnel files.  This is most important especially in a dismissal as this would need to be referred to in later proceedings.

Obviously, all the above must follow proper procedures as well as having a sound and valid reason (substantive) to address an issue of misconduct.  This will be determined very much on the seriousness of the misconduct.

It is widely accepted that disciplinary procedures should follow corrective or progressive discipline.  This means that an employer should attempt to address misconduct by correcting the unacceptable behaviour without resorting straight to dismissal in the first instance. Dismissal should be the last measure in the disciplinary process and a penalty only in respect of very serious misconduct which cannot be dealt with using progressive discipline.

Of course, if the misconduct is very serious, then the employer has every right to proceed straight to a formal hearing and request a dismissal at the end of the proceedings. Minor violations can be dealt with without having to resort to the dismissal of the employee.

In all matters of discipline in the workplace, there are two very important requirements that the employer has to observe;

• Procedurally fair – means that the employer must follow proper procedures in dealing with misconduct, especially when dismissal is requested. This usually takes the form of a formally convened hearing where witnesses are led, the hearing is recorded, documents are presented in a bundle and used during the procedures, heard by an independent Chairperson, the employee may be represented  – and so on.
• Substantively fair – means that there must be a valid and proper reason to initiate disciplinary proceedings against an employee – usually with reference to the Codes/Rules and societal norms and ethics.

If either of the above are ignored, then the employee might have recourse to appeal to an outside forum, but a topic for another time.

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  • Neale Quilliam
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