The Role of Discipline in the Work Place
I have Observed that many Workers not taking their Jobs Serious, thus ended up in Unnecessary Labour Disputes. I would like to share the following Important Rules and Regulations with my Readers.
– The Employee has a Duty to Obey
– The Employer has the Right to Maintain Discipline in the Workplace
– The Labour Relations Act 1995 Accept this Duty in the Code of Good Practice; Dismissal
– Within these Broad Guidelines Aspects that are relevant to Discipline in General.
– Disciplinary Systems should lay down reasonable Rules that are applied Fairly and Consistently.
What is your opinion on the Role of Discipline in the Workplace?
●The (Implied) Right to Discipline is inextricably linked to another implied term of the Contract of Employment namely;
◊The Duty of the Employees to Obey all Lawful and Reasonable Instructions of the Employer.
●If the Employer did not have the Right to Discipline the Employee who fails or refuses to comply with the Employer’s Instructions, the Right to give instructions would be meaningless.
●If the Contract of Employment contained Provisions about Discipline, then Discipline had to be Enforced by those Terms.
●However, if the Contract did not contain such provisions, contractual principles dictated the exercising of Discipline.
In Terms of these Principles, the Employer can face the following:
◊Dismiss Summarily for a serious Breach of Contract or, put differently, for Serious Misconduct;
◊Dismiss by giving the required Notice;
◊Issue a Penalty other than Dismissal, provided that the
Penalty did not join a Breach of the Contract of Employment.
Sanctions or Actions To Be Taken:
: Disciplinary Penalties should be applied progressively from Lighter Sanctions to more severe Sanctions.
Sanctions in order of Severity include:
◊ General Warning/ Specific Warnings
◊ Oral Warnings
◊ Written Warnings
◊ Final Written Warnings
◊ Denial of Privileges
◊ Demotion; and
1. To Dismiss an Employee, such Dismissal must be Fair.
2. The Labour Relations Act 1995 provides that Dismissals for certain reasons are Automatically Unfair.
3. For other Forms of Dismissals the Code provides:
◊“A Dismissal is Unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with a Notice Period in a Contract of Employment or in the Legislation Governing Employment”.
4. The Common Law Principles regarding Dismissal. They can be summarised as follows:
●The Common Law does not concern itself with the fairness of a Dismissal;
●The Common Law concern itself only with the Lawfulness of the Dismissal.
◊It regards a Dismissal as Lawful if the required notice of Termination of the Contract of Employment has been given or, in the case of a Summary Dismissal, it Termination was because of a Fundamental Mal-performance by the Employee of a Contractual Duty.
Dismissal will be Automatically Unfair in accordance with Labour Relations Act 1995.
General Requirements for a Fair Dismissal:
1. These requirements for a Fair Dismissal relate to the Substantive Fairness of a Dismissal.
2. Without at least one of these Reasons present for a Dismissal, the Dismissal will be without Substance, in other words, it will be Substantively Unfair.
– Three Factors are considered:
●The Reason for Dismissal should be valid
●The Reason for Dismissal should be fair
●The Employer should be consistent
“Valid Reason” – means a Lawful Reason according to Common Law, Contract of Employment or an Agreement, such as Theft, Insubordination, Assault, etc.
◊A Lawful Reason is not per se fair. A Reason is fair only if a continued Employment Relationship is impossible. Other alternatives must be considered so that Dismissal is used only as a last resort.
◊Repeated Incidents of Misconduct are required before a Dismissal is justified, unless the Misconduct displays a criminal element such as Fraud, Assault, and Theft.
◊There is no fixed rule about the number of warnings which must precede a Dismissal, but warnings must be issued for the same or related offences.
◊The Employer must act consistently, example treat like cases alike!
◊All Circumstances in the given case must be considered, such as the service record and length of service of the worker, mitigating factors, nature of the Misconduct, possible prejudice to the Employer.
◊The onus is on the Employer to prove the Dismissal is fair on a balance of probabilities and according to the facts known to him/her.
●The requirements of Procedural Fairness were developed from the Rules of Natural Justice of the Common Law. The Employer has to act in a Semi-judicial Manner before imposing a Disciplinary Penalty.
●The Labour Relations Act more specifically sets out the requirements for a Fair Procedure in item 4(1). The most important Rule of Natural Justice is the audi alterem rule. Which means: “The Employee should be heard”
Common Law Reasons for Dismissal:
1. Failure or Refusal to work;
2. Deliberate and Continued Absenteeism;
3. Gross Negligence;
4. Serious Incompetence;
5. Refusal to Carry out Orders;
6. Repeated Unpunctuality;
7. Incapacity of the Employee;
8. Dishonesty in the Sphere of Work;
9. Dishonesty outside the Sphere of Employment;
10. Disloyalty to the Employer;
13. Gross Insubordination or Insolence
c. Gross Negligence;
f. Revealing of Trade Secrets (Confidential Information);
g. Persistent Idleness;
The Code of Good Practice.
Offences which Dismissal Specifically Cites as Grounds for Dismissal.
a. Gross Dishonesty;
b. Willful Damage to the Property of an Employer;
c. Willful Endangering of the safety of others;
d. Physical Assault on the Employer, a fellow Employee or Customer;
e. Gross Insubordination
Reasons that the Labour Courts in Principal accept as Valid Grounds for Dismissal the Forms of Misconduct enumerated above, with the provision:
a. The Dismissal must be preceded by a Fair Hearing to enable the Employee to defend them-selves;
b. The Employer must prove that the Employee concerned in fact committed the misconduct allegedly;
c. The misconduct must be such as to give the continuation of the employment relationship impossible or intolerable
d. The Employer must consider the possibility of a sanction less drastic than dismissal.
Automatically Unfair Dismissal:
Reasons that an Employee will rely on to claim that he/she was “Automatically Unfairly Dismissed” within
the meaning of Section 187 of the Labour Relations Act.
– Every Employee has the Right not to be Unfairly Dismissed:
– Dismissals will be Unfair if the Employer fails to prove that there is a Fair Reason for the Dismissal related;
– Either to the Employee’s Conduct;
– Capacity or Competence; or
– To the Operational Requirements of the Employer; and
– That the Dismissal was effected in Terms of a Fair Procedure;
– Any Agency charges with deciding whether a Dismissal was Fair will be required to take into account the Code of Good Practice appended in the Schedules;
– This Code has detailed Guidelines for the different Types of Dismissal.
Dismissals which amount to an “Automatically Unfair Dismissal”
a. Victimsation or Interference with the Freedom of Association;
b. The Employee took part in, supported or declared his or her intention to take part in a Strike or Protest Action in Terms f the Act;
c. He or she refused or declared his or her intention to refuse to do work normally done by an Employee who is engaged in a Legal Strike; or
d. Who has been Locked out by the Employer (except where such work is necessary to prevent damage to the plant or machinery);
e. The Employer wanted to oblige the Employee to comply with a demand related to any matter of mutual interest;
f. The Employee took steps or declared his or her intention to take steps against the Employer b exercising any Rights or engaging in any action to which he or she is entitled in Terms of the Act;
g. The Employee is pregnant or intends to become pregnant (or any other reason related to his or her pregnancy);
h. The Employer directly or indirectly discriminated unfairly against the Employee on any Arbitrary Ground, including (but not limited to) race, gender, sex, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, faith, political opinion, culture, language, marital status or family responsibility.
I believe the above mentioned few Important Rules and Regulations will help my Readers (both Employers and Employees) in their Working Environment, to Maintain A Friendly Working Environment!
Trudy Bock-Cloete Human Rights Activist: http://www.trudybock.wordpress.com