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Disciplinary Policy, Termination of employment and Dismissal.
Employers fear to discipline employees because they do not know the laws and rules that apply. This note attempts to seperate fact from fiction by clarifying some of the issues.
Let's start with extracts of what the law says....
BASIC CONDITIONS OF EMPLOYMENT ACT (BCE Act)
Ch.5 of the BCE Act covers the "Termination of Employment", under the following headings...
37) Notice of termination of employment
37.1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than ...
37.1.a) one week, if the employee has been employed for 6 months or less
37.1.b) two weeks, if the employee has been employed for more than 6 months but not more than one year
37.1.c) four weeks, if the employee ...
37.1.c.i) has been employed for one year or more; or
37.1.c.ii) is a farm worker or domestic worker who has been employed for more than 6 months
37.6) Nothing in this section affects the right ...
37.6.a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal ito. Ch.VIII of the Labour Relations Act...
37.6.b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.
38) Payment instead of notice
39) Employees in accomodation provided by employers
LABOUR RELATIONS ACT (LR Act)
The LR Acts covers "Dismissal" under the following headings ...
- Chapter VIII - Unfair Dismissal
185... Right not to be unfairly dismissed
186... Meaning of dismissal
187... Automatically unfair dismissals
188... Other unfair dismissals
188A. Agreement for pre-dismissal arbitration
189... Dismissals based on operational requirements
189A. Dismissals based on operational requirements by employers with more than 50 employees.
190... Date of dismissal
191... Disputes about unfair dismissals
192... Onus in dismissal disputes
193... Remedies for unfair dismissal
194... Limits on compensation
195... Compensation is in addition to any other amount
196... Severance pay
197... Transfer of contract of employment
- Schedule 8 - Code of Good Practice: Dismissal
.2. Fair reasons for dismissal
.3. Disciplinary measures short of dismissal
.4. Fair procedure
.5. Disciplinary records
.6. Dismissals and industrial action
.7. Guidelines in cases of dismissal for MISCONDUCT
.8. Incapacity: POOR WORK PERFORMANCE
.9. Guidelines in cases of dismissal for poor work performance
10. Incapacity: ILL HEALTH OR INJURY
11. Guidelines in cases of dismissal arising from ill health or injury
Herewith some guidelines, which are generic and must be adapted to different types of organisations and job positions
- Little information is given in the various legislation on the process of discipline, short of termination and dismissal.
- The BCE Act in simple terms says that a contract of employment can be terminated by either the employer or the employee by giving the required notice, or under certain conditions without any notice, but is very skimpy on the rest. This kind of termination is often as per the "Employment Contract", or by "Resignation" of the employee.
- The LR Act mainly covers a sub-section of "Termination of Service" generally referred to as "Dismissal" at the behest of the Employer, and more often not ito. the Employment Contract".
Ch.VIII deals with "Unfair Dismissal" and Schedule 8 provides a "Code of Good Practice" to follow to prevent dismissals which later can be shown to have been unfair.
-Any Disciplinary Action must be procedurally and substantively correct and fair
*Procedurally fair means that a proper procedure had been followed, comprising of certain steps, perhaps the most important that an employee must be told what the charges are, and have an opportunity to put forward a defence.
*Substantively fair requires that the offence must be properly substantiated, and the disciplinary action fair iro. the seriousness of the offence.
-Disciplinary Action must attempt to first be corrective before being penalizing, and must within reason be applied consistanly.
-Any action / penalty must be appropriate to the seriousness of the offence ito. the type of organisation and the employee's job, ie. coming late may have different implications depending on the nature of the work being performed.
-An employee should know that he/she can always appeal any disciplinary action, which must normally be directed to the superior of the person who had meeted out the decision.
-Mitigating circumstances may be heard from the employee, before making a decision about the penalty. Likewise, may the employer consider aggrevating circumstances.
-In general is it not a requirement that an employee sign any document, and if he/she does is it not an acknowledgement that the information contained in the document is correct, but merely proof that it was received. Where an employee will not sign for receipt of such documents, must an alternative be devised to show that the employee had received the paperwork, often getting someone else to acknowledge it.
-The Disciplinary Policy of an Organistion should consist of a Procedure and a Code
* Disciplinary Procedure: essentially the procedures that must be followed
* Disciplinary Code: a guideline on the offences and appropriate penalties
-Warnings do not require a proper 'enquiry or hearing' and is largely a one-to-one situation between the employee's Superior and the Employee.
-The following penalties are available....
Normally given as part of the supervisory oversight, mainly intended to bring important job requirements to the attention of the employee, guide the employee and rectify behaviour.
Given when an employee has made him/her self guilty of not complying with the job requirements, and is held to be valid for 6 months.
*Final Written Warning
Bearing in mind that 3 valid Written Warnings can warrant dismissal, is the second Written Warning often termed a 'Final Written Warning' indicating that on receiving a 3rd Witten Warning, a case could be made for dismissing the Employee.
-Note that the words "disciplnary enquiry / hearing", "warning", "verbal warning","written warning" and "final written warning" do not appear anywhere in the LR Act nor it's Code of Good practice. It is a convention that has developed over time in order to follow a fair procedure , and have a written record of offences and "penalties" on the employee, in some instances serving as a basis for dismissal in case of repeated offences.
-As a general guideline, should an employee not be dismissed until a proper Disciplinary Hearing had been held. The involves .....
+Notifying the employee in writing 3 working days in advance, when and where the Hearing will take place, and the charges against the Employee.
+Getting someone impartial to act as the Chairperson, normally the employee's superior's superior.
+Having a proper meeting where the charges are presented, discussed and the employee given an opportunity to bring a defence.
+A decision is made and put in writing, with proper substantiation and a copy given to the employee.
*If dismissal, must it be the appropriate sanction, ie. the employee must be found guilty of what in all fairness is accepted as a "dismissable offence".
*penalty may be a warning in one form or the other
*the case may be tossed out, without any disciplinary action
-The ultimate decision to dismiss an employee may be with Notice, or without Notice
+This decision will depend on the reason for dismissal.....
-An employee can only be dismissed for the following categories of reasons ...
Employee must have known of the rule being contravened, and that such rule was reasonable & consistantly applied,
+(Incapacity due to) Poor Work Performance
After probation, employee must have been given the necessary instruction, training and guidance, after which the employee still continued to perform unsatisfactorily.
+Incapacity due to Ill-Health or Injury
*A case for incapacity due to Ill-Health of Injury must be investigated to determine whether ....
it is permanent or temporary
the employee cannot feasibly do the work
an alternative arrangement cannot be made
an alternative position can not be provided
+ Operational Requirements
*This relates to the Organisation having to scale down operations due to lack of work, and not intending in the near future to replace those employees. This requires consultation with the employees affected by possible retrenchment, and paid a proper Severence & Retrenchment package.
Accronym for "Commission for Concilliation, Mediation and Arbitration", and any employee with any grievance may refer it to the CCMA.
- However, the first step (quite logically) is conciliation. This simply requires that the parties get together at the offices of the CCMA, and attempt to resolve the grievance through discussion. The CCMA has no involvement, short of serving tea & coffee.
- Should the employee's grievance not be resolved, must the parties then get together again, with someone from the CCMA getting involved by mediation, and simply engages the parties to reach an agreement.
- If a solution can still not be reached, is the matter taken to the 3rd stage of arbitration, where some mutually agreed on person will hear the arguments by the two parties, and make a decision which is binding and hopefully resolve the whole matter.
So, being dragged to the CCMA can happen no matter how hard the employer may try to avoid it....... and is not something to be afraid of, apart from the time and energy taken to prepare and properly argue your case.
Pierre Leon Myburgh
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