The golden rules of applying discipline

by Anneline Scriven

The Commission for Conciliation, Mediation and Arbitration (CCMA) was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA) 66 of 1995 and is aimed at promoting fair practises and resolving labour disputes within the working environment.
An employee can refer a dispute to the CCMA on account of dismissal, wages and working conditions, unfair labour practises, workplace changes and discrimination. Most cases referred to the CCMA pertain to unfair dismissal. In general, arbitration awards in favour of the employee are due to incorrect procedures on the employer’s behalf.

Always follow the golden rules of applying discipline and ensure that the consequences of a CCMA case do not mean the end of your business:

  1. Have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. Employers must have an up-to-date disciplinary code that lists offences with the appropriate sanctions to use when rules and procedures are not followed.
  • Apply progressive discipline according to the offence’s seriousness and keep a detailed record thereof.
  • Remember, the CCMA mainly looks at two elements when an employee refers a dispute:
  • Substantive fairness – a valid and fair reason for the sanction imposed. The employer must be able to prove the following on a balance of probabilities:
  • Was there a rule in the workplace?
  • Was the rule reasonable?
  • Was the employee aware of the rule?
  • Did the employee break the rule?
  • Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
  • Did the employer apply discipline consistently?
  • Did the misconduct justify the sanction applied?
  • Procedural fairness – the required legal procedure before imposing a sanction. An employer cannot dismiss an employee under any circumstances, even with a valid reason, without holding a disciplinary hearing to ensure that a fair procedure is followed. The employer must be able to prove the following:
  • A disciplinary hearing was held;
  • The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing;
  • All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation;
  • The chairperson was informed and unbiased;
  • The accused employee was given every chance to prepare for and defend his/her case;
  • Aggravating and mitigating circumstances were taken into account;
  • The outcome of the dismissal was based on the facts presented during the hearing;
  • The sanction was appropriate according to the offence;
  • The hearing and outcome were recorded in writing by the chairperson;
  • The employee received the outcome in writing.

Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be managed proactively, as not following the correct procedures can lead to dire consequences with a substantial financial impact.



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