The relationship between an employer and employee is based on mutual benefits and respect. Clear rules and guidelines ensures that friction and misunderstanding are limited. This will in turn promote a productive and positive work environment.
The vast majority of cases referred to the CCMA are due to “unfair dismissal”, with most of these relating to misconduct that led to dismissal. In general, arbitration orders granted in favour of the employee are directly linked to the employer not having followed the correct procedure. The CCMA may grant orders of up to twelve months of an employee’s salary against the employer.
What should employers do?
Progressive discipline is a widely known concept in the labour environment. It is one of the most important points considered by the CCMA, Bargaining Council and Labour Court when a dispute involving unfair dismissal arises. Employers need to ensure that progressive discipline is understood and correctly applied in the workplace.
What is progressive discipline?
The Labour Relations Act, 1995 (Act 66 of 1995) describes progressive discipline as follows: “The approach of progressive discipline in the workplace considers the purpose of discipline as a measure for employees to know and understand which standards are required of them. Reasonable steps must therefore be taken to improve or change employees’ behaviour through the systematic use of warnings and consultations.”
Discipline in the workplace is aimed at adjusting and improving behaviour through corrective action, consultations and warnings, rather than punishing or dismissing an employee.
Types of misconduct
Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are violated, the employer can apply progressive discipline. In cases of serious misconduct employers can directly proceed with a disciplinary hearing. The employer must keep detailed records of offences and the sanctions applied.
There are different types of misconduct in the workplace. These range from less serious offences to very serious offences. It is influenced by the type of work and responsibility of the employee, the (possible) consequences of the offence, as well as the impact of the offence on the employee-employer trust relationship.
In cases of less serious offences, the employer can follow an informal process through good advice or guidance, correction and consultation. When the offence is of a serious nature, a formal process can be followed in terms of written warnings and/or dismissal after a disciplinary hearing.
Progressive discipline consists of the following steps:
- Verbal warning – valid for three months.
- Written warning – valid for six months.
- Serious written warning – valid for nine months.
- Final written warning – valid for twelve months.
- Dismissal (after a disciplinary hearing).
The term for which warnings are valid is not specified by labour legislation, but in practice we recommend the stated terms.
The employer must consider the seriousness of the offence and apply progressive discipline according to the nature of the offence, e.g. in the case of:
- Absent without permission for one day = written warning.
- Absent without permission for two consecutive days = serious written warning.
- Absent without permission for three consecutive days = final written warning.
- Contempt – final written warning or disciplinary hearing.
- Failure to carry out instruction – final written warning or disciplinary hearing.
If the employee repeatedly violates the same rule and the employer applies progressive discipline, the employer can issue a more serious warning if the previous warning is still valid.
Examples of once-off offences that could justify dismissal are:
- Gross dishonesty (theft, fraud, false statements).
- Intentional damage to property.
- Assault or attempted assault.
- Gross negligence.
- Extreme cases of contempt.
- Wilfully putting people’s lives in danger.
An employer cannot under any circumstances dismiss an employee without holding a disciplinary hearing. It ensures that a fair procedure has been followed and there is substantive proof to dismiss the employee.
The employer therefore needs to manage several business risks on a daily basis. It is strongly recommended that employers act proactively by implementing clear rules in the workplace. The correct procedures must also be followed with regard to all labour law issues, especially dismissal and general discipline in the workplace.
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