Schedule 8 of the Labour Relations Act  stipulates in section 3 that "all employers should adopt disciplinary rules that establish the standard of conduct required of their employees."

 " An employers rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and available to employees in a manner that is easily understood by employees"

 It is obvious that no employee may be disciplined for breaking a rule that he/she was not aware of in the first place, and therefore it is essential that the employer's Disciplinary Code and Procedure be communicated to all employees in writing, in a language that the employees can clearly understand.

 This may mean printing your Disciplinary Code in perhaps 3 different languages. 

If an employee is illiterate, then the Disciplinary Rules must be translated to him in a language that he/she can clearly understand. 

The Standards of Conduct should contain rules that are, as far as possible, common to all employees. It is advisable to include a dress code as well, particularly for those employees who have dealings with members of the public or the employer's clients. 

The Standards of Conduct should stipulate: 

• Serious offenses : e.g. theft, fraud, insubordination, unauthorized absenteeism, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or any substance having a narcotic producing effect, arriving at work with the smell of alcohol on the breath, etc.

• what disciplinary action may be imposed should an employee be found in breach or guilty of breaking any rule listed under serious offenses. For example, "any employee found guilty of breaking any rule listed under Serious Offenses shall be guilty of misconduct and dismissal may result.

• in this way, employee are left in no doubt whatsoever regarding the consequences of unacceptable behaviour in the workplace. They cannot claim "I did not know it was such a serious thing" or "I never ever thought I could be dismissed for that."  Your employee will be fully aware of the consequences of his misconduct, and should he/she choose to misconduct himself/herself, then the risk and liability passes to the employee.

If you can show at the CCMA that your Disciplinary Code stipulates that dismissal will follow a certain act of misconduct, and if you can show that the guilty employee was fully aware of this, your case will be considerably enhanced in your favour. 

This is simply because the CCMA requires that employers must follow their own procedure, and should an employer not do that, he will be found in procedural unfairness every time – of that you can be certain. 

We do not recommend that sanctions should be listed as "first offense – verbal warning"  "second offense – written warning"  "third offense – final written warning " and so on. 

If you structure your Code in that manner, you are bound to follow that procedure and there may be an instance where the seriousness of the offense calls for dismissal. But you will be unable to dismiss if your code states "first offense – verbal warning." 

You will be bound, by the conditions of your own procedure, to only apply a verbal warning. 

Your Code should simply state 

 "In all instances of misconduct, where the employee is found guilty after following a fair procedure, the sanction imposed may range from a verbal warning to dismissal, depending on the seriousness of the offense and the circumstances surrounding the commission of that offense and other factors as decided by the Chairperson of the Hearing." 

"Where the code states that for a particular offense the sanction will be dismissal – such as listed under "Serious Offenses" – then that sanction will be applied if it is for a fair reason."

 "In all cases, such verdicts and findings shall be the province of the Chairperson of the Disciplinary Hearing." 

For more information contact advice@labourguide.co.za

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za