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Misconduct is one of the grounds in law that justifies an employer terminating the

contract of employment of an employee. However, for a dismissal for reasons of


misconduct to be fair the dismissal must be:
Substantively fair- there must be a valid reason for the termination of the contract
of employment. The facts of each case will determine whether the dismissal is for a
fair reason and whether dismissal is the appropriate penalty; and
Procedurally fair - the dismissal must be effected in a procedurally fair manner.
This means that an employer may not just give notice in accordance with the
contract of employment or in terms of governing legislation. An employer must also
ensure that dismissals for misconduct are for a valid reason after a fair procedure
has been followed. Structure of the Disciplinary Procedure
The procedure is drafted on the assumption that an employer will apply progressive
discipline on the understanding that discipline should be corrective rather than
punitive. This means that the employer should endeavor to first correct an
employee's behaviour, such as by issuing:
verbal warnings for minor transgressions;
written warnings for consistent misconduct; and
final warnings for persistent misconduct.
Dismissal should be considered as a last resort.
The procedure provides that before an employer issues a warning (written warning
or final written warning) to an employee, the employer must meet with the
employee concerned . The purpose of this meeting is for the employer to hear the
employee before the employer issues the written warning. The procedure is
intended to provide a framework for parties to use in drafting their own disciplinary
procedure.
The procedure sets out the minimum requirements, which any disciplinary
procedure should contain. Parties may wish to supplement their own procedure with
this procedure or use this procedure to provide a basic structure for developing their
own procedure. However, it is a procedure, which, if applied as it currently stands,
should ensure that discipline is fairly and effectively administered.
The Code of Good Practice requires employers to adopt disciplinary rules that
establish the standard of conduct required of employees. The Code recognises that
the content of disciplinary rules will vary, depending upon the nature, size and type
of undertaking in which the employees are employed.

Service of Notices referred to the Procedure.


All written notices must be properly served on the employee concerned (written
warning, final written warning, notice to attend a disciplinary procedure etc.) It is
recommended that the employee who is served with a notice should be asked to
sign acceptance of receipt of the notice. However, if the employee refuses to sign
when served with a notice, the employer should record this fact on the notice and
state the time, date and place where the notice was handed to the employee
concerned.
Duration of Warnings
The procedure suggests that:
a verbal warning should remain valid for 3 months (see paragraph 4.3);
a written warning should remain valid for 6 months (see paragraph 5.4); and
a final written warning should remain valid for 12 months (see paragraphs 6.5).
However, the length of time warnings should remain valid are suggestions only
(note the square brackets) and this issue should be decided upon by the employer
and the employees or unions with whom the employer negotiates the procedure.
Representation at a Disciplinary Enquiry
The disciplinary procedure provides that a fellow employee or a shop steward of a
recognised trade union should represent an employee. If a shop steward is called to
attend a disciplinary hearing the Code of Good Practice requires an employer to
consult with the shop steward's trade union prior to issuing any notice to attend a
disciplinary enquiry. This is set out in paragraph 7.4.

Disciplinary Enquiry
The chair of the disciplinary enquiry must, insofar as it is possible, be a person who
is able to make an independent decision based on the facts presented at the
enquiry. The chair of the disciplinary enquiry must be a person who has not been
involved with investigating the employee concerned or who is going to prosecute
the charges against the employee in the disciplinary hearing.
The chair of the disciplinary hearing must consider whether:
the employee being charged broke a rule of conduct in the workplace;

the rule was valid or reasonable;


the employee knew about the rule or should have known about the rule; and
the employer has been consistent in applying the rule.
Once the chairperson of the disciplinary hearing has made a determination
about whether or not the employee is guilty of the offence with which the employee
is charged the chairperson must consider the appropriate sanction to impose, after
having heard the employee in this regard. The chairperson must consider whether
dismissal is the appropriate remedy to take against the employee for breaking the
rule or whether a less severe penalty, such as a final written warning or suspension
would not be more appropriate. Each case must be judged on its own particular
facts and the chairperson of the disciplinary hearing should always take into
account the nature of the job and the circumstances surrounding the commission of
the offence itself.

The Code of Good Practice recommends that when deciding whether or not to
impose the penalty of dismissal, the employer should consider:
the gravity of the misconduct;
the employee's circumstances, including length of service, previous disciplinary
record and personal circumstances;
the nature of the job; and
the circumstances of the infringement itself.
It is imperative that the employer applies the penalty of dismissal consistently with
the way in which it has been applied to the same and other employees in the past
and consistently between two or more employees who participate in the misconduct
under consideration.
PRINCIPLES OF NATURAL JUSTICE
The procedure for taking disciplinary action against any delinquent employee must
be based on principles of natural justice - which again are in conformity with the
principles of a Welfare State.
To hold an enquiry in conformity with the principles of natural justice, the following
conditions are to be met :
a) the employee proceeded against has been informed clearly of the charges
levelled against him;

b) the witnesses are examined ordinarily in the presence of the employee in


respect of the Charges;
c) the employee is given a fair opportunity to cross-examine the witnesses;
d) the employee is given a fair opportunity to examine his own witnesses, including
himself in his defence, if he so wishes;
e) the enquiry officer records his findings with reasons for the same in his report.

9. Appeals
9.1 An employee who is dismissed shall be entitled to appeal against such
dismissal to the [appropriate managerial structure].
9.2 Appeals must be noted in writing within five (5) days of the decision,
stating the grounds of appeal.
9.3 The [appropriate managerial structure] shall determine if it is necessary to hear
further evidence, or to allow further submissions to be made, and may confirm, vary
or uphold any appeal.
9.4 The [appropriate managerial structure] may delegate its powers in 10.3 to a
sub-committee or representative.
9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that
date on which the employee is advised of the outcome of the appeal hearing. An
employee who is dismissed must be informed that's/he has the right to refer a
dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on
which the employee was dismissed.