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PURPOSE
The purpose of a disciplinary code and procedure is to regulate
standards of conduct and incapacity of employees within a company or
organisation. The aim of discipline is to correct unacceptable behaviour
and adopt a progressive approach in the workplace. This also creates
certainty and consistency in the application of discipline.
PARTIES OBLIGATIONS
The employer needs to ascertain that all employees are aware of the
rules and the reasonable standards of behaviour that are expected of
them in the workplace.
The employee needs to comply with the disciplinary code and
procedures at the workplace. The employee also needs to ensure that
he/she is familiar with the requirements in terms of the disciplinary
standards in the workplace.
COUNSELING VERSUS DISCIPLINARY ACTION
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 and/or where
the breach of the rule is relatively minor and can be condoned.
Disciplinary action will be appropriate where a breach of the rule
cannot be condoned, or where counselling has failed to achieve the
desired effect.
Before deciding on the form of discipline, management must meet the
employee in order to explain the nature of the rule s/he is alleged to
have breached. The employee should also be given the opportunity to
respond and explain his/her conduct. If possible an agreed remedy on
how to address the conduct should be arrived at.
FORMS OF DISCIPLINE
Disciplinary action can take a number of forms, depending on the
seriousness of the offence and whether the employee has breached the
particular rule before. The following forms of discipline can be used (in
order of severity):
• Verbal warning;
• Written warning;
• Final written warning;
• Suspension without pay (for a limited period);
• Demotion, as an alternative to dismissal only; or
• Dismissal.
The employer should establish how serious an offence is, with reference
to the disciplinary rules. If the offence is not very serious, informal
disciplinary action can be taken by giving an employee a verbal warning.
The law does not specify that employees should receive any specific
number of warnings, for example, three verbal warnings or written
warnings, and dismissal could follow as a first offence in the case of
serious misconduct.
Formal disciplinary steps would include written warnings and the other
forms of discipline listed above. A final written warning could be given in
cases where the contravention of the rule is serious or where the
employee has received warnings for the same offence before. An
employee can appeal against a final return warning and the employer
can hold an enquiry if the employer believes that it is only through
hearing evidence that the outcome can be determined. Written warnings will remain valid for 3 to 6 months. Final written
warnings will remain valid for 12 months. A warning for one type of
contravention is not applicable to another type of offence. In other
words, a first written warning for late-coming could not lead to a second
written warning for insubordination.
Employees will be requested to sign warning letters and will be given an
opportunity to state their objections, should there be any. Should an
employee refuse to sign a warning letter, this does not make the
warning invalid. A witness will be requested to sign the warning, stating
that the employee reused acceptance of the warning.
Dismissal is reserved for the most serious offences and will be preceded
by a fair disciplinary enquiry, unless an exceptional circumstance results
in a disciplinary enquiry becoming either an impossibility (e.g. the
employee absconded and never returned) or undesirable (e.g. holding
an enquiry will endanger life or property).
WHEN CAN AN EMPLOYER HOLD A FORMAL ENQUIRY
An employee may be suspended on full pay pending a hearing
especially in instances when the employee’s presence may jeopardise
any investigation. The employer must also allow the employee to make
representations. The employer should give the employee not less than
three days notice of the enquiry and the letter should include:
• The date, time and venue of the hearing
• Details of the charges against the employee
• The employee’s rights to representation at the hearing by either a
fellow employee or shop steward.
Note: If the employer intends disciplining a shop steward, the employer
must consult with the union before serving notice to attend the enquiry
on the intention to discipline the shop steward including the reasons,
date and time.
WHO SHOULD BE PRESENT AT THE ENQUIRY?
• A chairperson
• A management representative
• The employee
• The employee representative
• Any witnesses for either parties
• An interpreter if required by the employee
HOW SHOULD A HEARING BE CONDUCTED?
The employer should lead evidence. The employee is then given an
opportunity to respond. The chairperson may ask any witnesses
questions for clarification. At the ending, the chairperson decides
whether the employee is guilty or not guilty. If guilty, the chairperson
must ask both parties to make submissions on the appropriate
disciplinary sanction. The chairperson must then decide what
disciplinary sanctions to impose and inform the employee accordingly.
The employee should be informed that s/he has right to appeal. If the
does not provide for an appeal procedure, the employee must be
reminded that he/she could take the case further to the CCMA or
bargaining council.
The failure to attend the hearing cannot stop the hearing from continuing
except if good cause can be shown for not attending. Note: This procedure should not substitute disciplinary procedures
subject to collective agreements.
Parties can also request, by mutual consent, the CCMA or a bargaining
council to appoint an arbitrator to conduct a final and binding disciplinary
enquiry. The employer would be required to pay a prescribed fee.
(Labour legislation is not specific in terms of the steps to follow when
conducting a disciplinary enquiry. These procedures should therefore
merely serve as guidelines for parties).
RELEVANT LEGISLATION
Code of Good Practice for Dismissal: Schedule 8 of the Labour
Relations Act of 1995, as amended.
Source; CCMA
