Last week we spoke about fair and unfair dismissal and how easy it is to get confused especially with the labour law in South Africa. Today I put together the correct and proper disciplinary procedures. This is just a guideline to use, in more severe cases you should always consult with a labour practitioner.

DISCIPLINARY PROCEDURES

The purpose of a disciplinary code and procedures is to regulate standards of conduct and incapacity within an organization. The aim of discipline is to correct unacceptable behavior and adopt a progressive approach in the workplace.

Types of Disciplinary Action:

Verbal warning;

Written warning;

Final written warning;

Hearing / Dismissal.

Verbal Warnings

All warnings given should be acknowledged by the employee concerned. The employee will give his signature to the warning or to the formal disciplinary report. An employee may refuse to sign a warning, in which case the fact of his refusal should be noted and witnessed. All warnings are only valid within a specific time frame, usually between 3 to 6 months, and to give a written warning on the same offence, there should be 3 verbal warnings on the same offence and all verbal warnings must still be valid.

Written Warnings

Written warnings may be given with or without a disciplinary hearing being held. There has to be 3 written warnings on the same offence for a final written warning to be given. An employee can appeal agains a final written warning and the employer can hold an enquiry if the employer believes that it is only on hearing evidence that the outcome can be determined. When receiving/issuing a letter of warning the following should be remembered:

Written warnings will remain valid for 3 - 6 months

Final written warnings will remain valid for 12 months.

A warning for one type of contravention is not applicable to another type of offence.

Counselling vs Disciplinary Action:

Counselling - will be appropriate where the employee is not performing to a standard or is not aware of the rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned.
Disciplinary Action – will be appropriate where a breach of the rule cannot be condoned, or where counselling has failed to achieve the desired effect

Arbitration instead of Disciplinary Hearing

In terms of recent amendments to the Labour Relations Act, employers and employees can agree that an arbitrator should be requested to conduct an enquiry in regard to the employee's conduct or capacity. This permits parties, by agreement, to short circuit the statutory dispute resolution procedure and avoid much duplication in procedures. Such arbitrations allow for a single procedure that results in a final and binding arbitration award. The decision of the arbitrator will be subject only to review by the Labour Court. The employer pays a fee for the arbitration service rendered. The amount of the fees have not yet been determined and will be subject of regulation.

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