Importance and implementation of a disciplinary code and written policies

Business is conducted in a challenging environment where every workplace is unique. Employees form an integral part of the work environment and are diverse in terms of personality, frames of reference, value systems, culture, motivation, and so on.  Misconduct in the workplace is a common phenomenon and can have a negative influence on any business if it is not proactively managed and handled in line with labour legislation.

Ask the question

When it is necessary to take disciplinary action against an employee, the first and probably most important question to be asked, is whether the employer has implemented a disciplinary code or policy related to the employee’s misconduct. Without evidence of this, disciplinary action taken against such an employee may be considered unfair by the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court.

Section 3(1) of schedule 8 of the Labour Relations Act, which deals with dismissal, stipulates that all employers should have a disciplinary code that sets out the standard of behaviour expected of employees. This section further states that the standard of behaviour must be clearly set out in a way that is easily understandable and accessible to all employees.

Applying discipline

A complete disciplinary code sets out the various offenses with appropriate sanctions. Keep the following in mind:

• Discipline in the workplace aims to adjust and improve behaviour through correction, consultations, and warnings, rather than punishing or dismissing an employee. Dismissal should always be the last option.

• There are different types of misconduct in the workplace ranging from less serious violations to very serious violations, which are influenced by the employee’s type of work and responsibility, the (possible) consequences of the misconduct, as well as the impact of the misconduct on the employee-employer relationship of trust.

• Rules in the workplace apply to all employees and the employer must consistently apply discipline in line with the disciplinary code’s provisions. Although the code serves as a guideline, it may not be lightly deviated from and a heavier or lighter sanction can only be applied in exceptional cases.

Case study

In the case of Mushi v Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine, an employee was dismissed after being found guilty of misconduct. The employer’s disciplinary code stipulated that the sanction for this type of misconduct is the issuing of a final written warning. However, the employer dismissed the employee.

The Labour Appeal Court found that even though the employer’s disciplinary code was a guideline, its purpose is to create a degree of certainty and consistency in the application of discipline in the workplace. The court further argued that any deviation from a disciplinary code may not take place without good reason and that there must be a justifiable and fair reason why an imposed sanction differs from the prescribed sanction in terms of the disciplinary code.

Implementing rules:  have proof

Rules are implemented through the disciplinary code, policies, and procedures. It is essential that the employer must be able to prove that employees are aware of the workplace’s rules (with appropriate sanctions) before the employer can consider any disciplinary action against an employee for violations.

To avoid a situation where an employee can claim that he/she was not aware of the employer’s rule(s), the disciplinary code and any policies or procedures must be in writing and the employer must have physical proof that these rules were communicated to all employees. The employer can do the following:

• Implement an existing or new disciplinary code through a consultation with all employees. The employees may be required to complete an attendance register to confirm that the disciplinary code has been explained to them and that they are aware of its content.

• Bring a new policy or procedure to the attention of employees by sending the policy or procedure to employees via email. The e-mail will then serve as written proof that employees have been informed and are aware of its content.

The vast majority of cases referred to the CCMA are following “unfair dismissal”, of which the majority of these cases are related to misconduct that led to dismissal. Generally, arbitration orders granted in the employee’s favour are directly linked to the employer failing to follow the correct procedure. The CCMA can grant orders of up to 12 months of an employee’s salary against the employer. It is important that employers correctly understand and apply the principles of discipline in order to avoid unnecessary CCMA headaches.

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