Articles

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website: www.labourlawadvice.co.za.

The LRA requires that “…the standards of conduct are clear and made available to employees in a manner that is easily understood.” Therefore, two of the things that an employer is required to prove when it is dragged to the CCMA are that:

  • the rule that the employee is alleged to have broken existed at the time of the alleged offence
  • the dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.

 

In the case of Martens Vs Nel (1998, 9 BALR 1167) Martens was dismissed for flirting with customers. The arbitrator found that the dismissal was unfair because Martens had not been given the rules relating to behaviour towards customers. The employer was ordered to pay Martens 10 months’ remuneration in compensation.

This makes it clear that:

  • Every employer needs to draw up its own Disciplinary Code
  • Induct every employee as to its Disciplinary Code
  • Keep proof that the above has been done.

 

A Disciplinary Code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. These penalties need to be proportionate to the seriousness of the offence.

When designing and implementing your Disciplinary Code remember:

  • The offences need to be clearly described
  • The rules need to be reasonable and fair
  • They need to be realistic so that it is possible for employees to follow them
  • To include all those rules which pertain specifically to your organisation
  • To communicate the code to all your employees in a language they understand
  • To explain the reason for rules which employees could have trouble in understanding.
  • To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.
  • Ensure that, if you deviate from your disciplinary code, you have a solid and legally acceptable reason for the deviation. In the case of Magagula vs Department of Health (2004, 2 BALR 156) the employee was suspended without pay for three months for accepting a bribe. He referred a dispute to the Public Service Bargaining Council where the suspension was found to be procedurally unfair. This was despite the fact that the employer’s disciplinary code provided for dismissal (a stronger sanction than suspension) of employees taking bribes. The arbitrator based his/her award on the fact that the employer’s code only allowed suspension without pay to be implemented with the employee’s permission. Such permission had not been obtained and the employer offered no acceptable reason for this deviation from the code. The employee was therefore awarded compensation.

In view of the dangers involved in designing faulty disciplinary codes and in the implementation thereof it is crucial that all employers assign a labour law and industrial relations expert to:

  • Check their Disciplinary Code for legal defects
  • Add in rules that are missing
  • Train their management in the interpretation and application of the code.