The Disciplinary Procedure For Misconduct is provided for by the Commission for Conciliation Mediation and Arbitration (CCMA). The purpose of which is to supplement disciplinary procedure and offer suggestions on how to draft a disciplinary procedure.
Misconduct is a ground that justifies dismissal by an employer but it must still be substantively and procedurally fair. Substantively fair means that there was a valid reason for the termination of the employment contract. This is determined on its on facts and merits and whether dismissal is the most apt penalty for the complained of misconduct. Procedurally fair means that the dismissal was carried according to procedure and fairly. The employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. A fair procedure must be followed.
From the interpretation of the disciplinary procedure stated above is that the employer will apply the progressive discipline taking into account that discipline is corrective, not punitive. The employer should try to first correct the employee’s behaviour with verbal warnings for minor transgressions, written warnings for consistent misconduct and final warnings for persistent misconduct. Dismissal is deemed the last resort.
Before an employer issues any kind of warning, they must meet with the employee in question. The aim of that meeting is hear the employee’s side before the issuing of a written warning. The Procedure sets out the minimum requirements that any disciplinary procedure should have. Employers can supplement their own procedure or use it as a basic structure and in its basic form the procedure should ensure that discipline is fairly and effectively administered. The CoGP requires employers to adopt disciplinary rules that establish the standard of conduct required of employees. It recognises that the content of disciplinary rules will vary, depending upon the nature, size and type of undertaking in which the employees are employed.
Service of Notices
All written notices must be properly served on the employee concerned and it is recommended that the employee served be asked to sign acceptance of receipt of the notice. Where the employees refuses to sign, the employer should record this fact on the notice and state the time, date and place where the notice was handed to the employee concerned.
Duration of Warnings
- Verbal warning should remain valid for 3 months;
- Written warning should remain valid for 6 months; and
- Final written warning should remain valid for 12 months.
These time frames are suggestions and will be discussed amongst the employer and the employees or unions with whom the employer negotiates the procedure is brought.
The CoGP recommends that employers keep a record for each employee specifying the nature of any disciplinary transgression/s, the actions taken by the employer and the reason/s for such action/s. The employer file all the documentation in the employee’s personal file.
Representation at a Disciplinary Enquiry
A fellow employee or a shop steward of a recognised trade union should represent an employee. Where shop steward is called to attend a disciplinary hearing, an employer must consult the hop steward’s trade union prior to issuing any notice to attend a disciplinary enquiry.
The chair of the disciplinary enquiry must, where possible, be an impartial third party capable of making an independent decision based on the facts presented at question. The chair must be a person who has not been involved with investigating the employee concerned or who is going to prosecute the charges against the employee in the disciplinary hearing.
The chair of the disciplinary hearing must consider whether:
- the employee being charged broke a rule of conduct in the workplace;
- the rule was valid or reasonable;
- the employee knew about the rule or should have known about the rule; and
- the employer has been consistent in applying the rule.
Once the chair has made a decision of innocence or guilt, they must consider an appropriate sanction once they have heard the employee. They will determine whether dismissal is the appropriate remedy or whether less severe penalty such final written warning or suspension will do. Each case must be judged on its own particular facts and the chairperson of the disciplinary hearing should always take into account the nature of the job and the circumstances surrounding the commission of the offence itself.
The CoGP recommends that when deciding whether or not to impose the penalty of dismissal, the employer should consider the gravity of the misconduct; the employee’s circumstances, including length of service, previous disciplinary record and personal circumstances; the nature of the job; and the circumstances of the infringement itself.
It is imperative that the employer applies the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently between two or more employees who participate in the misconduct under consideration.
The procedure does not contain an appeal procedure therefore it is recommended that there has been a fair enquiry, which accords the accused employee all the elements of a fair hearing, to eliminate the need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the CoGP.
Direct referral to arbitration and appeals
The decision not to include an appeal procedure is also premised on the view that the parties may prefer to include in their disciplinary procedure provision that if the outcome of the disciplinary enquiry is challenged, the dispute is referred to private arbitration for a final and binding award. Although, where the parties decide that they want to include an appeal hearing into their disciplinary procedure, the following is a suggested appeal procedure. The appeal procedure would follow the procedure below.
An employee who is dismissed shall be entitled to appeal against such dismissal to the appropriate managerial structure. Appeals must be noted in writing within five (5) days of the decision, stating the grounds of appeal. The appropriate managerial structure shall determine if it is necessary to hear further evidence, or to allow further submissions to be made, and may confirm, vary or uphold any appeal. The appropriate managerial structure may delegate its powers in to a sub-committee or representative.
In the event that the dismissal is confirmed, the date of dismissal shall be that date on which the employee is informed of the outcome of the appeal hearing. They must be made cognisant of their right to refer a dispute in terms of the Labour Relations Act (LRA) within 30 days of the date on which the employee was dismissed. The procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation.
In terms of section 190 of the LRA, the “date of dismissal is the earlier of the date on which the contract of employment terminated; or the date on which the employee left the service of the employer.” The dismissal only becomes effective on the date that the employee is notified of the outcome of the appeal hearing. This will allow the exhaustion of internal procedures, including the appeal hearing, before a dispute is declared and referred for resolution.
Referral of a dispute
An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee’s dismissal. An employer should advise the employee of this right upon dismissing the employee. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted.