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Managers often get stuck when having to formulate disciplinary charges and the employee’s conduct does not really fit into any of the stipulated offences in their disciplinary code. Some feel compelled to pick the closest one from the list, believing that those are the only permitted options. It is actually much simpler.
Introduction
I have on occasion chaired disciplinary hearings where the ‘charges’ presented to the employee hardly made sense in terms of what the employee had actually done - using clichéd phraseology, one-worded allegations, or bizarre combinations of offences. Sometimes, from one incident, the initiator would manage to formulate four or five separate charges to cover all of the possible categories the conduct could resort under in the company’s disciplinary code (which of course amounts to unfair splitting of charges).
I accept that many managers or business owners have limited knowledge in this respect and find security in having a Disciplinary Code with listed behaviours and linked sanctions, and wish to stick to that. It could however become more complicated than it needs to be and not achieve what it is supposed to, if such a document is slavishly followed.
Misconduct
The starting point is to realise that a disciplinary code does not create a limited number of disciplinary offences by stipulating some examples and recommending sanctions for those. Those are guidelines in respect of the consequences for breaking certain company rules and the rules themselves are not created by this.
All discipline relate to misconduct, i.e. the breach of a valid workplace rule/standard for which the employee is culpable / at fault. The actual charge for any disciplinary offence is therefore essentially “misconduct” – which may then be further described in accordance with the facts of the case and the available evidence. If an employee is dismissed subsequent to a disciplinary process, the reason for the dismissal will be misconduct (as opposed to incapacity or operational requirements) and the sanction must be an appropriate response by the employer in reaction to the particular misbehaviour of the employee.
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