Discipline and Dismissal

       

In terms of disciplinary procedures, there are certain basics that must be clearly understood regarding complaints or transgressions.

 First: 

  • A process of discipline deals only with matters of misconduct.

 Second:  

  • A process of evaluation, counseling, guidance, training and so on, deals with matters of poor performance and incapacity or incompatibility.

 

Disciplinary investigation, enquiry and sanction are only applied in cases of misconductSo misconduct is a disciplinary process. Poor performance and incapacity is a counseling process. 

The objective of a disciplinary process is to correct an undesirable or unacceptable situation by applying progressive disciplinary measures or sanctions – if the first action taken does not bring about the desired result, then a more harsh or more strict or more stringent action is applied against the employee to persuade him/her to correct the situation and fall into line with the result that management require. 


Eventually, if the sanctions do not achieve the desired result, dismissal may occur. The distinguishing characteristic of a counseling process is that instead of applying sanctions, the employer applies guidance, training and instruction to help the employee to overcome his/her weaknesses.  


Should those processes fail and it is eventually decided that the employee simply does not have the ability to perform the inherent requirements of the job, then the employment contract could be terminated after following due process. 


The only common factor is that should progressive discipline fail, or should training, guidance and instruction fail, them both misconduct and poor performance /incapacity end up in termination of the employment contract. 


Identifying Misconduct:
 

How do you know if the complaint received against a certain employee is misconduct or incapacity? 


The dictionary does not help much in defining "misconduct". The Concise Oxford Dictionary defines "misconduct" as: 


"Improper conduct, especially adultery; bad management." 


In terms of labour law, the following elements need to be considered in determining whether the transgression constitutes misconduct or not: 


1. Misconduct is the fault of the employee. Not necessarily deliberate or willful, but none-the-less the fault of the employee. It is something he/she did do or omitted to do. Acts of misconduct include inter-alia: assault; theft; negligence; fraud; drunkenness; failure to obey reasonable instruction (insubordination); fighting; abusive language; absenteeism; competing with employer; disclosing trade secrets; damage to property and so on. 

 

2. From the above, it will be deduced that misconduct is the breaking of a rule, regulation, a policy or procedure, or a standard of behaviour in the workplace.

 

3. In order for the rule to be broken, the employer must have had that rule in place, and the employee must have been aware of it or could be reasonably expected to have been aware of it. The employee cannot be held liable for breaking a rule or standard or be held liable for failure to observe a policy or procedure if he/she was not aware of the existence of that rule, standard. policy or procedure in the first place.

 

4. The employer must have consistently applied the rule. If the above conditions apply then you have a case of misconduct. The transgression will be Misconduct – assault. Or Misconduct – absent without authority.Or misconduct – insubordination. Or Misconduct – negligence.


Remember that "Misconduct" is not an offense – it is a heading under which a group of offenses are classified.

Please also avoid the use of the term "gross."


Gross means 12 dozen or 144. It has no place in defining the nature of a transgression.

Negligence is negligence.  Fraud is fraud.   Theft is theft.


If a man steals an electric drill from site, that is theft. If he steals an electric drill plus an angle grinder, is that "gross theft?" If you wish to emphasize the seriousness of a charge, then that must be proved by the evidence you have and by the circumstances surrounding the commission of the offense.


If you wish, you may describe it as "Misconduct – assault with aggravating circumstances. "Or "Misconduct – theft with aggravating circumstances." Or Misconduct – unauthorized possession of company property with aggravating circumstances." Then make sure you have identified those aggravating circumstances.


Don't just use that term to make the charge appear to be more serious.Use it only if the aggravating circumstances do actually exist and have been identified and will be used in evidence against the accused. But please, whatever you do, leave out this term "gross" – it is meaningless. By contrast, poor performance or incapacity is not the breaking of a rule or standard. Poor performance/incapacity is a consistent or repeated failure by the employee to attain or reach a standard of work in terms of quantity of output and/or  in terms of quality assurance standards.


This is not the fault of the employee – it is due to a lack of experience, a lack of training, a lack of understanding of the production process, a lack of understanding of the work performance standard or perhaps just an inability to perform according to the inherent requirements of the job. It may also be due to the personal circumstances of the employee – financial problems, family problems, pending divorce action and so on.

 

A completely different process therefore handles it.Lastly, all reports of misconduct must be put in writing. The written complaint should contain as a minimum

  • the date, time and place of the transgression,

  • a full description of what happened,

  • the name of the transgressor,

  • the names of any witnesses,

 

Armed with this information, a formal investigation can be embarked on.

 

Subscribe to our free newsletter

* indicates required
 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Upcoming Courses

 

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management (Legal Liability) 

28 July 2022 (08:30 - 16:00)

Interactive Online Course

29 July 2022 (08:30 – 16:00)

Emperors Palace: Convention Centre 

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

29 July 2022 (08:30 - 12:30)

Interactive Online Course 

 

August

New Code of Good Practice: Harassment in the Workplace New Course

04 August 2022 (09:00 - 12:00)

Interactive Online Course

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

12 August 2022 (09:00 - 15:30)

Cape Town: Protea Hotel Tyger Valley

The formulation of disciplinary charges Online Course

12 August 2022 (09:00 - 12:00)

Interactive Online Course

Chairing Disciplinary Hearings

18 & 19 August 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 August 2022 (08:30 - 16:00)

Interactive Online Course

Shop Steward Training

19 August 2022 (09:00 - 16:00)

Interactive Online Course 

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

25 August 2022 (09:00 - 13:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

26 August 2022 (08:30 - 16:00)

Interactive Online Course

 

September

Retrenchments Simplified

02 September 2022 (09:00 - 12:00)

Interactive Online Course

Introduction to Mediation New Course

08 September 2022 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

09 September 2022 (09:00 - 16:00)

Cape Town: Protea Hotel Tyger Valley

Negotiation Skills New Course

22 September 2022 (08:30 - 16:00)

Interactive Online Course

 

Our Clients