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The disciplinary code decoded

By Nicolene Erasmus, Senior Consultant, SA Labour Guide

 

Paragraphs 3 and 4 of The Code of Good Practice: Dismissal state the following:

 

  1. Disciplinary measures short of dismissal. (1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.

 

  1. Fair procedure. (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

 

These paragraphs refer to the employer’s authority for introducing a disciplinary code into the workplace. “Disciplinary rules” refer to the workplace rules and bring the standard of behaviour expected of the employees to their attention. “Fair procedure” refers to the employer’s specific procedures, for example that the employee will be given at least 48 hours’ notice of a disciplinary enquiry or that a disciplinary hearing may be chaired only by a senior manager.

 

It would be unfair to discipline an employee for misconduct if the employee was unaware and totally oblivious to the fact that – with reference to the particular misconduct – there was a rule within the workplace that has been contravened. An employer therefore has to establish their own unique disciplinary code, provided that it complies with the principles of fairness. A disciplinary code normally comprises two parts. The disciplinary offences and sanctions are described in the first part while the second part of the disciplinary code sets out the disciplinary procedures.

 

In the absence of a disciplinary code, it would be difficult to decide on the appropriate sanction where, for example, an employee is found to be sleeping on duty. Different employers may have different views of the severity of the offence, depending on the nature of the business and the job description of the employee. A transgression that might be considered minor by one employer might be considered serious by another. A housewife could reprimand a gardener for sleeping on duty, whereas the owner of a security company will most probably dismiss a security officer for the same offence.

 

 

 

The following are examples of offences which may be added to the disciplinary code:

Poor timekeeping. (Class A – domestic worker; Class C – pilot)

Use of foul or derogatory language. (Class A – construction worker; Class D – pastor)

Unauthorised use or misuse of company property. (Class C)

Refusal to work, including overtime as per contract of employment. (Class C)

Gross insubordination. (Class D)

Theft or unauthorised possession of goods of/in care/possession of a member of the business, co-employee or client. (Class D)

 

It is important to note that disciplinary codes are intended to be used as guidelines in the application of discipline in the workplace and not as a fixed matrix of inflexible rules and regulations. As far back as 1994, the Industrial Court had already stated in Kammies v Golden Arrow Bus Services (Pty) Ltd (1994) 15 ILJ 1113 IC that “whatever a disciplinary code might stipulate, common sense dictates that it would be manifestly unfair if in terms of such a code an employee were dismissed for a mere paltry offence. It would, however, be similarly unfair if in terms of such a code an employee could not be dismissed no matter how gross and blameworthy his offence.”

 

Where an employee is found guilty of a dismissible offence, employers are advised to consider alternatives to dismissal – in other words, to consider a lesser sanction. Similarly, employers may consider a more severe sanction where an employee is found guilty of an offence for which a final written warning is provided. This may be done only where the aggravating circumstances justify such a sanction. In Van der Merwe v Shiba and Others (JR790/15) [2017], the LC held that “by prescribing the sanction of a written warning for dishonesty, the third respondent communicated to its employees the message that it tolerates dishonesty. No evidence of aggravating circumstances was led to prove that the gravity of the applicant’s misconduct justified a sanction harsher than the written warning prescribed in the disciplinary code. Absent aggravating circumstances, the decision that the dishonesty led to an irretrievable breakdown of the employment relationship between the parties is unreasonable.”

 

In Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] an employee was dismissed for having refused to obey an instruction of a foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck while the foreman was proceeding towards it. This was despite the fact that the disciplinary code provided for a final written warning for misconduct of the nature committed.

 

The LAC pointed out that the respondent’s disciplinary code, which was expressly stated to be a guideline, provided that the appropriate sanction in cases of insubordination, refusal to obey instructions, misuse of property or improper behaviour was that of a final warning. Disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace. It follows that departures from a code should not be arbitrary or for no valid reason. Even where the code is expressed as a guideline, there must be a “plausible and reasonable justification” for the sanction imposed, having regard for the gravity of the misconduct and relevant aggravating or mitigating factors. It follows that, in this matter, for dismissal to be appropriate the respondent was required to prove that the imposition of the most severe of sanctions, which exceeded that provided in the disciplinary code, was fair.

 

The courts have not been consistent when dealing with employers who deviated from their disciplinary procedures. In Leonard Dingler (Pty) Ltd v Ngwenya (1999) 20 ILJ 1171 (LAC) the court found that the correct approach was to regard disciplinary codes as guidelines which can be applied in a flexible manner and that, although there had not been compliance with the disciplinary code, substantive justice had been achieved in the treatment of the employee. The court in SAMWU obo Abrahams and others v City of Cape Town (2008) 29 ILJ 1978 (LC), however, held that the Dingler judgement patently does not deal with the right of an employee to require strict compliance with the terms of a peremptory disciplinary code and concluded that the applicant is entitled to insist that respondents comply with the national collective agreement and the stipulated procedure for disciplinary proceedings.

 

Employers are advised to avoid incorporating rigid disciplinary procedures and to draft more flexible disciplinary codes.

 

For more information contact Nicolene Erasmus at [email protected]

 

 

 

 

 

 

 

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