Lesson 1, Topic 1
In Progress

4.1 The fact that the disciplinary policy and procedures adhere to legislation requirements is demonstrated.

ryanrori January 12, 2021

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The importance of your Disciplinary Code and your policies and procedures cannot be over emphasised.  For any employer to try and operate a business without having in place a Disciplinary Code and policies and procedures to regulate the behaviour of his employees on the workplace (and off the workplace for that matter) is criminal.

Such an employer deserves every problem that the employees throw at him.

There is no law against any employer making rules and regulations to control the behaviour of his employees –  rules and regulations stipulating what employees are permitted to do and what they are not permitted to do on or off the workplace.

In fact, the Code of Good Practice – Dismissal stipulates that employers should have such rules and regulations in place.

The employer does not need the approval of the employees before he can institute such rules and regulations, and nor does he need the approval of any trade union. He also does not need such approval to amend any existing rule or policy.

Provided that the rules are reasonable, lawful and fair, in terms of all the circumstances and the employer’s operational requirements, the employer can institute whatever rules he wishes to.

Employees have no right to tell any employer what they will and will not do during time that the employer is paying them for – or, for that matter, in some instances even during time that he is not paying them for.

There is another and very important aspect to having proper a disciplinary code and policies and procedures in place.

It can save your bacon at the CCMA!!!

Did you know that??

Whilst your policies and procedures may not be law – if they are fair, reasonable, and lawful, you will seldom if ever be found in procedural unfairness in a CCMA dispute by following your own procedure.

And conversely, if you do not follow your own policies, you very well probably will be found in procedural unfairness in a CCMA dispute.

Further advantages are that your rules and regulations will create consistency and certainty in the mind of the employee – he will know exactly where he stands, your job will be made for easier, and as the cherry on the top you will probably get far more productivity out of your employees.

Employers unite!!  Take charge and control the behaviour of your employees!!

Don’t let your employees manage you!!!

The introduction of fair, reasonable and lawful policies and procedures, and proper control of your employees, is as good as money in the bank!!

The purpose of a disciplinary code and procedures is to regulate standards of conduct and incapacity within an organisation.  The aim of discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace.

Employer’s obligation- The employer needs to ensure that all employees are aware of the rules and expected reasonable standards of behaviour for the workplace.

Employee’s obligation –The employee needs to ensure that he/she is familiar with the relevant disciplinary standards in the workplace and that he/she complies with the disciplinary code and procedure at the workplace.

Counselling vs Disciplinary Action:

Counselling – will be appropriate where the employee is not performing to a standard or is not aware of the rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned.

Disciplinary Action – will be appropriate where a breach of the rule cannot be condoned, or where counselling has failed to achieve the desired effect.

Types of Disciplinary Action:  

Verbal warning;

Written warning;

Final written warning;

Suspension without pay (for a limited period);

Demotion, as an alternative to dismissal only; and

Dismissal.

The law does not specify that employees should receive any specific number of warnings.  Dismissal could follow on the occasion of a first offence, in the case of serious misconduct.  

Arbitration instead of Disciplinary Hearing 

In terms of recent amendments to the Labour Relations Act, employers and employees can agree that an arbitrator should be requested to conduct an enquiry in regard to the employee’s conduct or capacity. This permits parties, by agreement, to short circuit the statutory dispute resolution procedure and avoids much duplication in procedures 

Such arbitrations allow for a single procedure that results in a final and binding arbitration award. The decision of the arbitrator will be subject only to review by the Labour Court. 

The employer pays a fee for the arbitration service rendered. The amount of the fees has not yet been determined and will be subject of regulation.