Lesson 1, Topic 1
In Progress

3.5. Correctly Charging the Respondent.

ryanrori January 12, 2021

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It is  vital that the respondent be correctly charged from the beginning.

Make certain that you have correctly identified the act of misconduct for what it is, and charge accordingly.

If you attempt to change the charges or amend the charge sheet during the disciplinary hearing, your procedure will be rendered unfair.

Should the situation arise during the disciplinary hearing where it is discovered that the charges are incorrect, it would be better to revoke the proceedings and start again. Your reason for doing this would be, quite simply, that it is fair to the respondent to do so.

For example, if any employee has been absent without authority, do not charge the employee with insubordination – the charge must be what it is, namely unauthorised absenteeism.

A word on insubordination.

Our experience has shown that very few employers are aware of exactly what insubordination is.

Insubordination may be described as resistance to or defiance of authority or a disobedience, the refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer’s name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage.

In the Labour Appeal Court case involving CWIU and another v SA Polymer Holdings Pty Ltd T/A  Megapack (1996), insubordination was defined as “a willful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority.”

The characteristics present in insubordination would be a willful, verbal refusal of instructions, a willful disregard of management authority, or disrespect, rudeness, rebellious or disobedient gestures, manner or attitude, dismissive gestures, walking away, abusive language, knocking the written instruction or notification of inquiry from the senior managers hand, or taking it and discarding it, addressing the senior manager or director or supervisor in a disrespectful manner.

That should be sufficient to identify whether the offense is in fact insubordination or not.

At all times be reasonable.

It must be noted that what we are dealing with is not an unreasonable refusal to obey, but rather we are dealing with the refusal based on what to the employee perceives to be sound reasons for a refusal.

THE DISCIPLINARY PROCEDURE FOR MISCONDUCT

Provided by the Commission foe Conciliation, Mediation and Arbitration (CCMA)

The purpose of these explanatory notes is to supplement the disciplinary procedure below and offer suggestions on how to apply the draft disciplinary procedure. These notes also highlight innovations introduced in the procedure.

The Code of Good Practice

This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.

Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment of an employee. However, for a dismissal for reasons of misconduct to be fair the dismissal must be:

  • Substantively fair- there must be a valid reason for the termination of the contract of employment. The facts of each case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate penalty; and
  • Procedurally fair – the dismissal must be effected in a procedurally fair manner.

This means that an employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. An employer must also ensure that dismissals for misconduct are for a valid reason after a fair procedure has been followed.

Structure of the Disciplinary Procedure

The procedure is drafted on the assumption that an employer will apply progressive discipline on the understanding that discipline should be corrective rather than punitive. This means that the employer should endeavour to first correct an employee’s behaviour, such as by issuing:

  • verbal warnings for minor transgressions;
  • written warnings for consistent misconduct; and
  • final warnings for persistent misconduct.

Dismissal should be considered as a last resort.

The procedure provides that before an employer issues a warning (written warning or final written warning) to an employee, the employer must meet with the employee concerned (see paragraphs 5.2 and 6.2). The purpose of this meeting is for the employer to hear the employee before the employer issues the written warning.

The procedure is intended to provide a framework for parties to use in drafting their own disciplinary procedure.