Workplace discipline - the basics

Employers need to remember a few simple rules that will make a big difference when misconduct needs to be addressed in the workplace.

1. Natural justice

Each and every employee should have the opportunity to state their case and explain their actions. This is a basic right of employees that employers must remember. This simple rule applies to all forms of disciplinary action and all circumstances – even a verbal warning. Managers should learn the habit of always asking for an explanation and keeping the explanation on record. This does not deter from follow through with a warning even if an employee does not agree.

2. Disciplinary code

Employers who have a clear and concise disciplinary code make life much easier for themselves. Should there be an occurrence of misconduct, the code will and should empower the actions taken by the employer. The code should be communicated to all employees. When judging the guilt of an employee the questions asked (also by CCMA commissioners) are:

- Was there a rule?

- Was the rule known?

- Was the rule broken?

- Is the rule reasonable?

- Is the rule consistently applied?

It should be noted that some rules should be known by the reasonable person and do not necessarily have to be included in a disciplinary code. 

3. Consistency

It is a basic guiding principle of disciplinary action that employers should be fair and consistent. Should an employer tolerate theft from one employee it would be unfair to dismiss another for the same offence under the same circumstances. 

4. Procedural and substantive fairness

Substance: Employees are entitled to have the substance of their misconduct proven by their employers before they are found guilty of an offence. An employee also has the right to state his/her case. This is substantive fairness. An employee who was caught on camera stealing and who cannot reasonably explain their conduct is substantively guilty of theft. Employers usually get this part right to some degree however procedural fairness is often neglected.

Procedure: Should an employer simply dismiss the employee without following any procedure, the employer has however not been procedurally fair. The employer should at this point follow the correct procure which includes the disciplinary procedure of the company in question, this will also include the natural justice spoken of which gives the employee the right to state his/her case. This will include advising the employee if his/her rights, allowing him/her to prepare and going through a fair hearing type procedure before finding the employee guilty of an offence.

What is a fair procedure?

1. Call a hearing chaired by an independent party who has no prior knowledge of the event;

2. Advise the employee of his/her rights, examples of these are:

a. Right to be represented by a fellow employee;

b. Right to sufficient time to prepare;

c. Right to access to materials needed to prepare for the hearing; and

d. Possibly the right to a translator.

3. Hear the employers case.

4. Hear the employees case and explanation.

5. Both parties may call witnesses and question the witnesses of the other.

6. Find the employee guilty or not guilty.

7. Ask for factors in mitigation from the employee representative. This will include matters such as length of service and a clear disciplinary record as well as remorse.

8. Ask for factors in aggravation. This will include a spotty disciplinary record, lack of remorse as well as the communication and clarity of the disciplinary code.

9. At this point the chair person will impose sanctions which my include dismissal, demotion or even suspension without pay.

For more information on disciplinary action in the workplace contact [email protected]