Discipline and Dismissal

 

Harassment in the workplace is an often complained of problem in the workplace.


It takes place quite frequently, and it seems that the objective is that the employer engages in certain subtle tactics in the hope that the employee will become so fed up with the situation, that he/she resigns.


Very often, the employer will engage in such tactics in order to avoid having to follow proper retrenchment procedures,  or to avoid following disciplinary or poor work performance procedures. Harassment takes many forms. It can include things like overloading a person with work in the hope that they will fail, constantly criticising them regarding their work performance, but at the same time not criticising any specific aspect of the work performance.

 

It can include matters such as the misuse of power or position by a superior, victimisation, degrading a person in the presence of others by passing remarks about their work performance, their brain power or the lack of it, any unfair treatment based on arbitrary grounds such as race, gender, sexual orientation, religion etc, or even making unwelcome sexual advances, which of course constitutes sexual harassment.


Other things might include spreading of rumours about a person, or insulting them on the grounds of gender, race or disability etc - making them look stupid in the presence of others. This type of investment is usually done in such a subtle way, that nothing specific can be pinpointed. It usually ends where the employee simply resigns, but does not have sufficient grounds or substance to bring a dispute of constructive dismissal against the employer.

 

The question is, what can the employee do about it? Firstly, every individual has the right to be treated with dignity and respect in the workplace. Employers, in fact, have a duty to protect their employees from all forms of harassment, and employers should really have a company policy in place to handle such issues. Harassment can also, and usually does, constitute an unfair discrimination.


Further problems caused by harassment may include a violation of human rights.  It will certainly bring about the situation of poor morale in the targeted employee,  resulting in very low production from that employee.


It may also cause the employee to remain absent from work without apparent reason or proper authorisation, and usually also causes the employee to start arriving late for work.  The work environment itself becomes hostile and offensive to the employee, eventually culminating in the resignation of the employee.

 

Employees who are being subjected to this type of treatment should keep a careful written record of all incidents, noting down the date and time, making a careful note of what happened or what was said, and also noting down names of any potential witnesses.

 

The employee can then confront the perpetrator, preferably in writing, and request the perpetrator to immediately cease his/her unacceptable and intolerable behaviour. The employee should also make a formal complaint to the employer, and if the perpetrator happens to be a manager then the employee should address the complaint to somebody higher up on the ladder of authority.


The employee may also seek union assistance if they are a member of a trade union. It is important that the employee lodge a formal complaint with the employer because once the complaint has been lodged,  the company management must investigate the matter. Employees are also free to contact the CCMA for assistance should the employer ignore any formal complaint lodged by the employee.


For more information contact

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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