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Industrial Relations Training Programme

Module 2

Managing Employee Conduct

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© 2000, Workplace Performance Technologies

© 2000, Workplace Performance Technologies

CONTENTS

MODULE 1

INTRODUCTION TO MANAGING DISCIPLINE AND DISMISSAL

MODULE 2

MANAGING EMPLOYEE CONDUCT

MODULE 3

MANAGING EMPLOYEE PERFORMANCE

MODULE 4

MANAGING EMPLOYEE GRIEVANCES

MODULE 5

SUMMARIES OF LABOUR RELATIONS ACT 66 OF 1995

CODES OF GOOD PRACTICE ON SEXUAL HARASSMENT, UNFAIR DISMISSALS

CASE STUDIES, ROLE PLAYS AND UPDATES

Cost for full course:- R650.00 (excl. VAT)

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7

WELCOME AND INTRODUCTION

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GROUP DISCUSSION

Let us consider some typical situations you experience in managing your employees in the workplace:

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What are some of the specific implications for you, your employees, and the Company as a result of these challenges?

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As stated in the previous Module, the Labour Relations Act have categorised

Exercise : Place the following terminations into the appropriate category.

Circumstance Categorisation

Termination as a result of introduction of new technology

Termination arising from 'downsizing' or reduced profitability of a Company

Forced resignation

Voluntary resignation

Termination arising from dismissal for conduct

Termination arising from poor work performance

Termination arising from employees state of mental or physical health

Termination arising from clash of personalities

Exercise : What is the distinction(s) between Conduct (Misconduct), Performance

(Incapacity), Ill-health (Incapacity), and Incompatibility?

Conduct Performance Incapacity (Ill health)





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DEFINITION OF CONDUCT

Conduct is about how an Employee behaves or conducts himself at work or in relation to the rules of the Company. Misconduct implies some form of culpability (guilt) on the part of the employee. a. Conduct is about how an employee behaves or conducts himself at work or in relation to the rules of the Company. i. Misconduct arises out of an employee's failure to abide by or adhere to the standards of conduct expected of him by his Manager. Misconduct implies some form of culpability (guilt) on the part of the employee. ii. Performance is about how the employee performs the tasks required of him as determined by the standards of performance for that position.

In distinguishing between performance and conduct, the Manager must determine whether it is a question of:- i. ii. how the employee works (performance), or how the employee behaves at work (conduct).

ESTABLISHING STANDARDS OF CONDUCT

Standards of conduct are to be found in:

(i) the employment contract

(ii) common law

(iii) statutory law

(iv) disciplinary code.

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Quiz : What purpose(s) does a Company's disciplinary code serve? a. Can set higher standards of conduct than common law; b. Can set additional standards of conduct to those determined by common law. c. Can clarify standards of conduct.

A GENERAL DUTY?

There is a responsibility on management to take action to prevent recurrence of offences.

It is important therefore to examine the reasons why the transgression took place and to ask how this could be prevented in the future. Sometimes this can be directed at the organisation, sometimes at the employee.

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Employee Correction. If it is possible to establish why the employee committed the transgression, then it should be possible to seek obligation from the employee to prevent recurrence. This may be as simple as agreeing to catch an earlier train to get to work on time. It may be that the company assists an alcoholic to attend re-habilitation or therapy. A loan with counselling to help an employee out of financial problems may retrieve an otherwise lost resource.

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Management Correction. If the transgression can be avoided by management action, then the presiding Manager at the disciplinary interview/enquiry must make the necessary recommendations. This could be :-

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• issuing a notice to re-enforce the rules; give clear instructions in writing; re-training employees; changing procedures; counselling members of management concerning the interpretation of rules, policies and procedures.

THE PROCESS OF CORRECTION

There are occasions when, despite your efforts to improve an employee's inadequate behaviour, you have not succeeded. You may have provided support and had several discussions regarding the problem but, as no progress has been made, you now reach the

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© 2000, Workplace Performance Technologies point where you are forced to take formal disciplinary action in terms of the company's disciplinary procedure.

It is important that, in the initial stages of the disciplinary process:-

• you inform the employee that formal disciplinary action is being taken in terms of the company's disciplinary procedure.

• confirm that the employee is familiar with and understands the Procedure before proceeding.

• ascertain whether there are any underlying reasons for a lack of improvement.

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Should you decide that the reasons are valid, you would, of course, re-set the standards of conduct (ie. re- induction, re-training, education, counselling, etc.).

Always bear in mind the main criterion of disciplinary action is to resolve an unacceptable situation and assist the employee rather than punishment or even dismissal. Your support is therefore essential and it is hoped that the employee will be encouraged to make an effort to correct the problem. Disciplinary action is taken in steps, ranging from a verbal warning to the more severe option of a disciplinary enquiry which could result in dismissal.

The employee may react with hostility and feel that he is being victimised. It is here that your skill in the handing of the situation must effect a change in attitude in order to encourage the employee to correct the problem.

THE CIRCUMSTANCES

Consideration has to be given to the circumstances under which the offence occurred.

There may have been an emergency which may be reason not to follow normal rules, or that there was all the more reason why they should have been followed.

The nature of the instructions given could be another factor. Did they imply the contravention of a rule, or should the employee have brought the impending contravention to the attention of management?

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THE CONSEQUENCES TO THE PARTIES

The Impact on the Employer

As the main objective of discipline is to correct, then it is important to assess whether the action contemplated is likely to bring about such correction. For some employees being too lenient may imply they have got away with it, for others being too harsh may make them become negative towards the organisation.

The Impact on other Employees

"Justice must be seen to be done", is an important consideration. As the objective of discipline is to correct, then it is important that other employees understand the consequences of transgressing the rules, or to see the empathy of the company in the handling of discipline.

The Impact on Management

Whilst the manager presiding over the disciplinary interview/enquiry can discuss his reasons with or counsel other members of management regarding his decision, it is important that management in general, can identify with the pattern of disciplinary actions.

This is important on two counts.

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A string of harsh decisions will impact on the management/employee relationships and may encourage managers to exceed their authority, or result in collective employee grievances or unhappiness.

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On the other hand, a series of lenient actions may encourage management to become despondent and abandon their responsibility because they perceive attempts to enforce discipline as a waste of time.




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BEFORE TAKING DISCIPLINARY ACTION

Before embarking on the steps in the procedure, management must first assess the appropriate course of action to follow.

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Will counselling, training, re-training rectify the problem?

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Can this be undertaken without formal disciplinary action, or would failing to take formal action constitute an unacceptable precedent?

To reach a decision, you will have to carry out an investigation and then, decide whether to:-

• take no action at all;

• counsel the employee, with or without his representatives; or

• request the convening of a disciplinary enquiry.

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THE INVESTIGATION

As initiator, you are responsible for carrying out an investigation into the alleged incident.

This means checking facts, interviewing other members of Management/Supervision, and other employees. You must conduct this investigation with an open-mind because your task is to find out what went wrong, if anything, and why.

You must establish who was at fault, and whether procedures or systems or structures contributed to the problem, whether the alleged offence took place, whether other offenses took place, or what contributed to the perception that an offence occurred.




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THE ALLEGATIONS

Having completed the investigation, you will now be in a position to confirm

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whether the allegations are justified, what offenses appear to have been committed,

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which course of action is necessary, and

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what remedial action the company should be taking to prevent or minimise a recurrence (eg. issue a reminder notice, develop a new role, put up warning signs, amend a procedure, etc).

Where the investigation indicates that offenses have been committed, then these must be identified by reference to the specific company rules. Reference to the company Rules and Regulations will provide assistance in helping you determine the level of disciplinary action to follow. i. Categorisation of the offence a. Before formulating the charge, it is essential to conduct a preparatory investigation. Not only is it essential to determine the principal charge, but it is also possible to determine alternative or additional charges.

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……………………………………………………………………………………………………… b. Once the initiator has determined the nature of the actual charge, he must determine the elements of that charge.

For example, theft consists in an unlawful handling with intent to steal of a thing capable of being stolen. There are thus four elements which comprise theft, and each one must be present before the employer will have proved that theft has been committed.




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The charge must be objectively determined, and must not be merely the employer's notion of what constitutes the charge.

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NOTICE OF INTENTION TO HOLD A DISCIPLINARY ENQUIRY

It is imperative that the employee be timeously informed that a complaint has been lodged against him/her, that an enquiry will be held at a specific venue and on a specific date and time.

The nature of the complaint must be properly explained to the employee in order to enable him/her to understand the complaint, to prepare for the case, to obtain witnesses and to arrange for a representative.

Care must be taken to ensure that the employee has enough time at her/his disposal to prepare for the case. The employee must be informed of his right to representation when he is informed of the complaint. Any reasonable request from the employee for




16 postponement of the inquiry in order to prepare for the case must be considered. Should a request for a postponement be refused, the reasons for such refusal must be recorded.

All documentation plus a written dated record indicating the fact that the employee was informed of the complaint, the date of the enquiry as well as his right to representation, must be kept.

 In the case of a disciplinary enquiry, the initiator should normally give notice in writing to the employee(s), although he is entitled to delegate this responsibility where it is impracticable for him to issue notice.

 No formal disciplinary action should be taken earlier than twenty-four (24) hours from when the incident took place and should not be delayed longer than three (3) working days of the incident becoming known to management, unless further delay can be justified by virtue of the investigation into the alleged offence requiring more time, or any other cogent reason.

 Notification to the employees must cover the following :

• that formal disciplinary action through a disciplinary enquiry is to be taken against the employee in terms of the company's disciplinary procedure.

• that the employee has the right of reference to the disciplinary procedure and the person who must be contacted if he wishes to exercise this right.

• the allegation or allegations which are being brought against the employee.

• the date, time and venue of the disciplinary interview or enquiry (dependent on the level of disciplinary action initiated).

• the right of the employee to a representative of his choice, to call witnesses and to have an interpreter, and the need for the employee to inform the initiator of the names so that arrangements can be made through their supervisors for their release.

SUSPENSION PENDING AN ENQUIRY

In all instances of suspension pending an inquiry, such suspension will be with full pay and for a reasonable period.

Under what circumstances is it appropriate to suspend an employee pending a disciplinary hearing?




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SELECTING AN APPROPRIATE CHAIRMAN

REPRESENTATION

As previously stated an employee has the right to representation at all the levels of the disciplinary process. The employee may be represented by a colleague or a friend, or an employee organisation representative who must also be an employee of the company.

Note: No full time employee organisation office bearer may represent the employee during the company level disciplinary process unless any formal agreement between the parties provides otherwise. Such agreement should normally be reached where the charges brought against the employee are of a very complicated nature and/or where the alleged offender him/herself is an employee representative and there is nobody capable of properly representing the alleged offender.

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INTERPRETER

The interpreter must be a person who is trusted by both parties to be fair and able to relay proceedings accurately. Should neither the company or the employee reach agreement over such an interpreter, then either a mutually agreed external interpreter may be brought in, or two interpreters used. The employee's interpreter will translate management's questions/answers, and management's interpreter will translate the employee's questions and answers. Both interpreters will be free to challenge the accuracy of the other's translation.

Remember not to allow discussions to go on too long where an interpreter is being used.

Proceedings must be stopped regularly to allow the interpreter to translate.

OPENING THE DISCIPLINARY ENQUIRY

At the start of the a disciplinary enquiry, the following must be covered by the initiator in the case of interviews and the chairman in the case of disciplinary enquiries.

 Confirm that all those who should be present are in attendance.

 At disciplinary enquiries, this will involve the chairman, the initiator, the employee(s) concerned, the chosen representative and the interpreter, if required. Any management or employee witnesses should not be present but it must be confirmed that they will be available when called. (Again, ideally such witnesses will continue working until called).

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If the employee states that he does not want a representative and/or interpreter and/or witnesses, then the Chairman must not continue until such it is a matter of record that the employee(s) is waiving his/her rights in this regard.

 Confirm that the employee is aware of all the allegations being brought against him.

 It is advisable to read out the allegations and confirm that they are understood.

 Where the employee states that he does not understand the allegations, then take sufficient time to explain them.

 Confirm that the employee has had sufficient time to prepare his case.

 Inquire of the employee whether he pleads guilty or innocent to the allegations brought against him/her.




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 Explain to those present the method to be used in conducting the interview/enquiry, in that :

• the initiator must firstly give a brief overview of the events which have caused the allegations to be brought. Thereafter and in a logical order he must call witnesses to substantiate the facts contained in the brief overview.

• the employee will be invited to respond to the allegations and summarise his version of the events.

• throughout the initiator's input, including any witnesses which may be called, the employee and/or representative will be given the opportunity to seek clarity and/or cross- question. It should be made clear at the outset that the

Chairman will extend this right to them throughout the proceedings and that, if they wish to 'break in' at any point, then they must attract the attention of the Chairman.

• once the initiator has concluded, the employee and/or the representative will be given the opportunity to put their side of the story forward and that witnesses may or will be called to substantiate these facts.

• throughout this stage, the initiator will be given the opportunity to seek clarity and/or cross-question.

 On conclusion, the chairman will summarise the facts presented and, where applicable, will seek clarity on any item raised.

 The Chairman will then (normally) withdraw or require those present to withdraw in order to decide whether the allegations have been proved or not.

• The chairman must withdraw. If it is thought that the decision will not take long to arrive at, then participants should be required to wait. If, however, it is thought that some time will be needed to arrive at the decision, then the enquiry shall stand adjourned for a period.

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The Chairman will reconvene the disciplinary interview/enquiry and will state and motivate his decision as to whether the employee is guilty or not guilty with regard to each allegation brought forward.

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Should the employee be found guilty of one or more of the allegations:-

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• the Chairman will then ask the initiator whether or not there are any items in aggravation which he may wish to put forward before he decides upon a suitable penalty/action.

• the Chairman will then ask the employee and the representative whether or not there are any items in mitigation which they wish to put forward before he decides upon a suitable penalty/action.

• once the employee and the representative have concluded, the

Initiator/Chairman will call for the employee's personal file. The purpose of the file is to establish the record of the individual and the Chairman will declare to the disciplinary enquiry : the position of the employee and the work history (ie. promoted two times, etc.) any commendations which may be on file and which will be taken into account. any previous disciplinary actions which are relevant to the present case, provided that such disciplinary action is still valid.

 The Chairman will then normally withdraw or require those present to withdraw in order to decide on a suitable penalty.

• The chairman must withdraw. If it is thought that the decision will not take long to arrive at, then participants should be required to wait. If, however, it is thought that some time will be needed to arrive at the decision, then the interview/enquiry shall stand adjourned for a period.

 The Chairman will reconvene the disciplinary interview/enquiry and will state and motivate his decision with regard to a suitable penalty.

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The Chairman will inform the employee of his right of appeal, in terms of the company's disciplinary procedures, within the stipulated time period on the prescribed form.

TAKING NOTES

During proceedings the chairman should take notes. These notes must enable you to determine who said what, what were facts and what were opinions. They do not have to be verbatim minutes, but must record all salient points.




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CLARIFICATION OF THE FACTS

As chairman you have to base your findings on the facts presented. However, the object is to establish the truth. You are entitled to seek clarity from the parties and witnesses on issues not clear to you.

After evidence/witnesses have been led and been subject to cross-questioning, you are entitled to ask your own questions for clarity.

Remember, however, that you are not there to lead the case - that is the initiator's job, but you are entitled to ask questions to help you understand what happened.

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Considering the facts

Now you should identify the facts. These will be determined by physical evidence, common acceptance or by undisputed statements given by one or more witnesses.

Cross checking

Having listed the facts, the contradictions must be listed. This process helps to establish the feasibility of the cases. Often facts stated earlier in proceedings are contradicted later.

Credibility of the witnesses

By studying the evidence given by witnesses and cross-checking against established facts or statements made earlier in the testimony, the credibility of the witness can be examined.




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You will have already formed an opinion based on the way they presented themselves and answered questions.

Conflicting evidence

Where conflicting evidence is led eg. one man's word against another, then the credibility of the witness can be vital. One test to apply is ask yourself "suppose that the employee is telling the truth, why would the manager lie?" and then "suppose that the manager is telling the truth, why would the employee lie?"

When considering the answer to these questions against the background of the case, sometimes the issue becomes clearer.

Remember two golden rules :

• Make your decision objectively on the balance of probabilities; and

• If not sure, give the benefit of the doubt to the employee.

SUMMING UP

It is very important that you sum up after both sides have finished leading their cases. You should ask for a pause if necessary, whilst you go over your notes. You should read out the salient points to ensure that you have fully understood the case of each party.

They must be asked if your summary fairly reflects the case they have presented.

REACHING A VERDICT

A critical element in determining guilt is the summary you make before adjourning proceedings to weigh up the evidence. This summary covers the versions, as you understand them, of each side. They have had the opportunity to correct your understanding.

When coming to a decision, the chairman has to evaluate all the evidence before him with special reference to truthfulness and corroboration of all the witnesses.

The chairman must then find on a balance of probabilities whether the breach occurred or not. This means that the test to apply is whether he is reasonably convinced that the breach occurred or not.




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Note: The mere fact that one party has more witnesses that the other does not tip the balance in the favour of the party with the most witnesses. Truthfulness and corroboration during the case, especially cross questioning, must be the barometer to evaluate evidence.

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MITIGATION

Having communicated the verdict and your motivations to the employee at the interview/enquiry, you will then call for the mitigation to be led by the employee and/or representative. You must then call for the employee's file and examine it in his presence at the enquiry.

The initiator at a disciplinary enquiry is allowed to comment on mitigation led.

If appropriate, and at a disciplinary enquiry it is recommended, the proceedings can be adjourned while the manager presiding considers the actions to be taken.

The mitigating circumstances surrounding an incident are very important. The employee and/or his representative must be given an opportunity to present mitigation before the penalty decision is taken.

The elements to consider are :-

 Situational factors.

What circumstances prevailed at the workplace to influence the employee? Frustration is often a cause for transgression of rules. This can arise from poor working conditions, perceptions of being neglected, non co-operation from other employees, departments, etc.




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Ambiguous or conflicting instructions, lack of adequate knowledge or training, inadequate tooling or equipment can all be factors contributing to the problem.

 Personal circumstances.

Personal pressures can also contribute to lapses in behaviour or performance. Financial, marital and health worries affect all of us at some time in our lives. It is a management responsibility to examine whether such factors could have influenced the behaviour of the offender.

It is, of course, the duty of the employee to reveal these issues to the Manager if they are to be taken into consideration. This is not always easy for a person to do, and the

Chairman/Initiator should encourage the employee or the representative to disclose such problems. Such matters would have to bear investigation before being considered as to whether they influenced the misconduct.

It is important to consider the following :

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Hardship. The termination of an employee may be justified for his action, but the hardship caused may be excessive. Consider a long service employee with a short period until retirement. The loss of job at that age could mean certain unemployment, but the loss of pension benefits could destroy his retirement.

• Age. The loss of job at any age is traumatic, but the older the person, the more severe the blow.

• Qualification and Experience. These factors also impact on the likelihood of future employment and therefore the severity of the punishment.

• Number of Dependents. In our society, the loss of a job affects a large number of people whose survival is dependent on that wage/salary.

Personal Record

It is a requirement of Industrial Court precedent, that once adjudged to have committed an offence, the employee's record must be examined. This must only be looked at after the verdict has been reached, and the record must be examined in front of the employee at the interview/enquiry.

In the examination of the file, management must consider the following :




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• Length of Service. Long service implies that the employee is acceptable and should prompt investigation into sudden behaviour change.

• Promotions and Transfers and their Timing. This history can reveal a lot about the nature of the employee.

• Condemnations, Appraisals, etc. The good things should be recorded and count in favour just as much as the previous disciplinary record must count against him.

• Wage or salary increases (relative to the normal increases). This should indicate if the employee is above or below average but would not help when these issues are determined solely by collective bargaining.

• Bonuses (relative to normal awards).

• Previous disciplinary records. This give a picture of the employee. Only currently valid and relevant warnings can be considered for setting the level of disciplinary action. However, other warnings help to form an opinion, especially where a warning has brought about a change in behaviour.

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Other relevant factors. These will depend on the nature of the offence, such as timekeeping and attendance, being put into positions of trust, etc.

Whilst these considerations are important, it does not mean that an older person near retirement, with no qualifications and many dependents should not be disciplined.

However, in seeking to find correction, the impact of escalating discipline to dismissal must be clearly spelled out in an attempt to effect a positive change in behaviour.

DETERMINING THE PENALTY

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The following must be taken into consideration when deciding on the penalty to be applied:

• The circumstances surrounding the offence;

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Mitigation on behalf of the employee;

• Aggravating circumstances

• The employee's previous work and disciplinary history (both positive and negative).

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The impact of the penalty in correcting the employee's behaviour or performance; and

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The impact on other employees and management.

• The seriousness of the offence;

Seriousness of the offence

This aspect is basically covered by the definition of the offence. However, it is important to consider the seriousness against other factors. These would include :-

• The status of the offender. Negligence by a Manager could be more serious than negligence by a subordinate.

• The experience of the offender. An inexperienced person might be less likely to understand the consequences than an experienced person.

• Awareness of the problem. Where contravention of the rules has been brought to the attention of the employee recently. For example, a notice has recently been issued or a similar incident had recently occurred.

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NOTICE PAY

The nature of the employee's job.

Any employee who is being dismissed is entitled to two week's notice or pay in lieu of two week's notice (where the employee is monthly paid and no written contract exists which provides otherwise), except for instances where the breach, crime or misconduct warrants



© 2000, Workplace Performance Technologies a summary dismissal or in instances where a specific term contract is terminated on the

27 date of termination as agreed upon between the parties.

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THE RIGHT TO APPEAL

An employee may appeal against any disciplinary action taken against him/her (ie. the appeal right applies at any stage of disciplinary action whether as a result of verbal or written/final written warnings or disciplinary action taken at a disciplinary enquiry).

The right of appeal is not normally exercised at the lower levels of discipline but is almost always exercised in cases of dismissal.

Appeals can be lodged on the grounds of :

• procedural unfairness;

• substantive unfairness;

• a combination of procedural and substantive unfairness.

•

Sanction is too harsh

Many members of Management/Supervision view the appeal stage as a 'waste of time' since they believe that the actions taken by management are right and should not be subject to questioning.

No company should ever claim that its management is infallible and as a result it should accept that mistakes can and do occur. This is usually borne out in the disciplinary record,




28 since a number of decisions will have been revised and even reversed at the appeal stage.

 The key principle inherent in the fair and equitable disciplining of employees is that the right to appeal against disciplinary action is entrenched for all employees. This is necessary since no employee will be removed from his employment or detrimentally affected by disciplinary action unless the company is sure that its actions are correct.



An appeal is a formal review by a member of management more senior than the management member who has taken disciplinary action against an employee. The appeal hearing may confine itself to a single aspect raised by the employee (ie. the penalty is too harsh or a representative was not permitted). Normally, however, the appeal hearing will review the total case and effectively re-run the disciplinary enquiry.



Whether an appeal hearing is confining itself to one or more single issues or reviewing the total case it is necessary for the appeal hearing chairman to follow the conduct required in running a disciplinary enquiry. In this regard all procedural steps and requirements of the disciplinary enquiry must be followed and the critical steps detailed in this guideline should be applied.

 The major difference in the conducting of an Appeal Hearing is that the chairman must establish the grounds of appeal and then the employee must lead his case first, with the Management/Initiator responding to the employee's case/allegations.



The Appeal Hearing has the power to review the case, the proceedings of the original enquiry and any evidence or new evidence led by either party. In reaching a decision, the chairman of the Appeal Hearing may confirm the outcome of the original enquiry or give any lower penalty, including withdrawal of any disciplinary action and re-instatement of the employee's benefits. An Appeal Hearing cannot give a more severe penalty than that given at the original enquiry.



Management does not have the power to appeal if they believe the penalty was too lenient. However, if the chairman of the disciplinary enquiry does not apply himself properly to the case (ie. a "miscarriage of justice" is deemed to have occurred) then it could be possible to re-hold the enquiry. In such circumstances, expert/legal advice must be sought. The Manager may direct that appeals will be heard by an appointed independent appeal tribunal or by the Head or Sub-Head of a department.




29

 The findings of such an appeal tribunal will be final and will not be permitted to be taken to yet another appeal chairman.

 The normal dispute resolution procedures, as described in existing agreements between the employer and employee organisation, will apply in instances where the employee or his organisation is not satisfied with the outcome of the appeal hearing.

 No person who was previously involved in the case at hand may preside over, or form part of an appeal tribunal.

 The chairman of the original case may be called to give evidence or information to the appeal tribunal but he/she may not be present throughout the proceedings.

 Any minutes and documents of the appeal proceedings must clearly stipulate the capacity in which every person is present at the proceedings.

 It is not necessary for the appeal tribunal to re-hear a case fully. It must, however, allow evidence relating to the points set out in the grounds of appeal. Should it appear from any new evidence during the hearing that certain facts were not considered, or that certain procedural irregularities took place which may have changed the outcome of the punitive action taken , or which have prejudiced the employee, the whole case must be re-heard.

 Any employee found guilty of a breach or misconduct must not only be informed of his right of appeal, but also on what grounds he can appeal.

 Should the employee wish to appeal, he/she must be assisted in formulating the appeal as well as to complete any prescribed appeal form.

 The appeal tribunal must hear the grounds for appeal as formulated by the employee, in his/her presence, and even a decision that no grounds for appeal exist must be communicated to the employee in person by the tribunal , together with the written reasons for the decision.

 A decision that no grounds for appeal exist, may only be made in instances where it is apparent that the request for an appeal is frivolous or that the appeal hearing will produce no new facts to be considered.

 The appeal hearing must take place as soon as reasonably possible and accurate records of the proceedings must be kept.




 An employee, his representative and/or the employee's organisation may (and is

30 entitled to receive) request a copy of the record of proceedings of the initial hearing in order to prepare for the appeal hearing and a copy of the record of the appeal hearing proceedings, in order to consider and prepare for possible litigation.

 An employee may be requested to sign acknowledgement of the outcome of a hearing, but may not be coerced to do so. Refusal to acknowledge the outcome of the hearing must be recorded by the chairman on the record of proceedings. Such refusal does not in any way alter the fact that disciplinary action has been taken.

 An appeal tribunal may, depending on the facts:

•

Set aside the decision reached at the initial hearing and find the employee not guilty.

• Uphold the decision of guilt by the chairman of the initial hearing, but mitigate the punitive action taken.

•

•

Uphold the decision and punitive action by the initial tribunal.

Find that certain facts were not considered and that the failure to consider the facts has prejudiced the case and therefore order a new hearing by another tribunal.

An appeal tribunal may not decide to issue a more severe penalty than the penalty decided on by the initial tribunal.

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CONCLUSION.

During the course of this module, you will be dealing with the following areas: a. b. c. d.

Communicating standards of conduct.

Improving Poor Work Habits.

Recognising Acceptable/Improved Conduct.

Disciplinary Hearing.

MODULE MAP

Setting &

Communicating

Standards of

Conduct

Improving Poor

Work Habits

Disciplinary

Hearing

Recognising

Improved Conduct

32




33

SUMMARY.

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34

FAIRNESS PRINCIPLES IN THE CONTEXT OF MANAGING CONDUCT.

To ensure that the Manager handles each situation fairly, we have identified five Fairness Principles.

Utilisation of these principles will ensure that your decisions are fair and equitable.

Whilst reviewing these principles, refer back to the relevant extracts from the Labour Relations Act.

FAIRNESS PRINCIPLE 1: BE OBJECTIVE

Focus on the conduct and not the employee

To be objective, the presiding officer must:

•

•

• be impartial have no ulterior motive have no prior involvement in the case

*



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Teasers

Give examples of how the objectivity of the chairperson can be compromised:- before the commencement of the hearing. during the course of the hearing.




35

FAIRNESS PRINCIPLE 2: LET THE EMPLOYEE STATE HIS CASE.

No employee may be dismissed for misconduct, or for any other reason without first being given an opportunity to state his case.

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FAIRNESS PRINCIPLE 3: PROCEDURAL FAIRNESS.

For the disciplinary process to be procedurally fair, the employee:

• must be charged within a reasonable time of the offence having been committed

• must be notified beforehand that a disciplinary hearing is to be held, during which the alleged misconduct will be evaluated

• must have been notified of the possible consequences with the prescribed standards of conduct

of his or her failure to comply

•

• must be given a is reasonable opportunity to prepare entitled to have a representative

for the disciplinary hearing

assist him or her (however, it is his/her duty to arrange for a representative from the unit at which he or she is employed)

•

•

• is entitled to an interpreter is entitled to is entitled to hear the case against him or her cross-question

(the Company must provide an interpreter)

any Company witnesses and examine any evidence




36

• justified.

•

• is entitled to bring his/her own witnesses

FAIRNESS PRINCIPLE 4: SUBSTANTIVE FAIRNESS.

Substantive fairness refers to the reason for the disciplinary action, and whether such action is

The prescribed standard of conduct

and must be present his/her own defense reasonable and legitimate

The prescribed standard of conduct must have been known to the employee; or could the employee reasonably have been expected to have known of the existence of the rule?

•

The prescribed standard of conduct must have been regularly and consistently enforced

•

•

The prescribed standard of conduct

Does the employee have a must have been broken/breached legitimate defense ?

•

Although the employer may be able to show that the disciplinary rule has been broken, the employee may advance a defence or an excuse. The presiding officer must decide whether he accepts the defence or excuse and whether it nullifies/excuses the misconduct. The presiding officer must also distinguish whether the defence is one which shows that the misconduct was not committed or a defence which is only in mitigation of sanction.

What possible defense could an employee raise in the following circumstances:

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37

 disobedience - was the employee prevented from following the instruction by factors beyond his control

•

The allegation of misconduct must be determined on the balance of probabilities

•

While a mere suspicion of misconduct is not sufficient to warrant dismissal, the employer is also not required to prove the employee's misconduct beyond a reasonable doubt. It is sufficient if the employer had reason to believe that on balance an offence had been committed. The employer may take account of only those facts known to him at the time of the dismissal.

The balance of probabilities is a difficult notion to explain. It means that the chairperson must make up his own mind on the basis of his own experience of life in a broad sense and in the particular field covered by the hearing, whether one version is more likely to have happened than the other...

He will probably not be able to say that he definitely prefers one version over the other. He will still have some nagging doubts but on balance he must be able to say: "I prefer this version above the other although I am not absolutely positive about this." The chairperson may even have a suspicion that the employee is guilty but he must bring out a finding of not guilty if there is insufficient evidence of guilt.

Guilty or not guilty by Prof. Adolph Landman, UNISA.

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FAIRNESS PRINCIPLE 5: DETERMINE A FAIR AND REASONABLE

DISCIPLINARY MEASURE.

The Industrial Court has laid down, and it appears to be universally accepted, that hearings must take place in two stages. First, the question of guilt or innocence must be determined. Secondly, the employer must determine what sanction would be appropriate. per Cameron A in Carmichael Communications CC and CAWU (1991) 12 ILJ 922 at 927




• the employer determine an appropriate (fair and reasonable) sanction

38 once the misconduct has been proved on the balance of probabilities, then only may

• a fair and reasonable disciplinary measure for misconduct would be one which is:





 consistent

* legal yet similar offenses should be punished with similar penalties.

in terms of statute and contract; flexible

with Company policy, code (Disciplinary Code) or practice;

, having regard to :

•

 the interests and personal circumstances of the employee, and the employee's conduct and work record relevant to the charge

 the interests of and any circumstances peculiar to the Company. For example, shrinkage is a particular problem in the hotel industry and would be dealt with more severely than in other industries.

 the seriousness of the misconduct apply a system of progressive, rehabilitative, punitive or corrective discipline

(whichever is appropriate)

•

To satisfy the criteria of flexibility:

 allow employee to plead factors in mitigation:-

Mitigating circumstances allow the presiding officer to act more leniently towards the employee, and he or she may impose a lighter penalty than the usual penalty imposed for that offence. Relevant mitigating factors include:

 length of service with the company (although this can also be regarded as an aggravating factor, depending on the circumstances)

 a clean disciplinary record

 personal circumstances, such as being the sole breadwinner of his family

 attitude of the employee towards the misconduct and his behaviour during the hearing

 allow the initiator to plead factors in aggravation




39

Aggravating factors call for stricter measures to be imposed, such as the maximum penalty, and include:

 length of service. For example an employee who has been with the

Company for 10 years should be aware that he or she is not allowed to assault another employee.

 the place where the misconduct took place

 the employee's position in the Company/unit

 an insolent, intransigent and remorseless attitude regarding the seriousness and nature of the misconduct

 previous disciplinary records, if appropriate

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• furnish the employee with your finding in respect of a disciplinary measure in writing

• warn the employee of further disciplinary consequences should he or she be found guilty of the same or a similar offence

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FAIR DECISION GUIDES

Critical Step Commentary

40

Need/Purpose

Preparation

* Communicating Standards of Conduct.

1.

3.

Indicate the reason for this meeting and why it is of importance.

Discuss and agree on each standard of conduct.

*

*

State the purpose of this meeting.

State why it is important to have clear agreed upon standards of conduct:- for you, for the employee, for the business.

* Be brief and to the point.

* Emphasise that you would like his input.

2. Outline the format of the ensuing discussion.

*

*

* Elaborate on `what' you will be discussing and `how' each step will be handled.

Check for understanding.

Be brief and summarise.

* Address any concerns he may have.

* Focus on the standard of conduct, not the employee or his character.

* Ensure employee understands why each standard of conduct is necessary and reasonable.

* Request employee's input. Encourage open communication.

* Check for understanding and agreement before proceeding to next standard of conduct.

4. Agree on resources and assistance required

*

*

* Familiarise yourself with the Company's disciplinary code and procedures.

* meeting.

Notify the employee of the time, place and reason for the

Address any concerns / fears of the employee.

Identify real or perceived barriers towards achieving these

* Identify and agree upon resources, training, guidance,



© 2000, Workplace Performance Technologies coaching and review periods.

*

5. Summarise discussion and set a follow-up date.

Be specific about your expectations.

* Check employee's understanding of the discussion and the specific standards of conduct.

* Check employee's understanding of assistance and resources agreed upon.

* Re-assure employee that he will receive written minutes of the discussion and agreed upon standards of conduct.

* Set a follow-up date with action plan (if necessary).

41




42


Need/Purpose * Improving Poor Work Habits.

* To address the employees breach of a prescribed standard of conduct invariably of a minor or petty nature.

1. Describe the poor * Point out acceptable standards of conduct & indicate where

* Check the employee's understanding of the standards of conduct required.

2. Indicate why such conduct is unacceptable.

* Focus on the problem and not the employee.

* Describe the effect that the misconduct is having on you and the work unit.

* Explain why the misconduct is a problem.

* Do not threaten the employee.

3. Ask for reasons and listen openly.

* Let the employee state his case.

* Listen and respond with empathy but do not let this influence your objectivity in addressing the poor work habit.

* Take notes.

* Summarise to clarify understanding & check that all likely causes have been identified.

* Don't make value judgements.

* Decide upon and communicate your findings in respects of the employee's guilt in breaching a standard of conduct.

4. Indicate that the situation must be changed & ask for ideas.

* Stress that correcting the unacceptable conduct is not negotiable.

* Ask for the employee's ideas.




*

*

*

*

5. Discuss each idea and offer your help.

Avoid making value judgements.

Ask questions to clarify understanding.

Add your own ideas.

43

Make notes.

*

*

Weigh up the pros and cons of each idea

Offer your support

* Determine, where appropriate, disciplinary action arising out of the employee's failure to meet the standards of conduct expected of him or her

* Clearly outline further disciplinary action you will have to take if the conduct/work habit does not improve

6. Agree on specific actions.

7. Set a follow-up date. *

*

*

* Let the employee select the solution that best addresses the misconduct.

* If the employee's choice is unacceptable, encourage the employee to come up with an alternative.

Set a specific follow-up date.

Thank the employee.

Reinforce your availability for assistance.




44


Need/Purpose

1. Describe the improved conduct. instances of misconduct.

*

*

*

*

Recognising Acceptable / Improved Conduct.

To reinforce improved conduct.

* To give recognition to the employee for the effort taken to improve.

Point out any measurable results - be specific.

Compare current improved conduct with previous

2. Explain the * Reflect on how the improvement impacts on you and the improvement.

3. Listen empathetically * Do not push for a response if the employee does not wish comments.

4. Ask if there is anything you can do to make it easier to do the job.

* Discuss any problems or annoyances that impact on the employee's ability to perform at the maximum level, or which have a bearing on his conduct at work.

* Ask for the employee's suggestions for making any further improvements.

Demonstrate your support. 5. If appropriate, indicate your intention to take action.

6. Thank the employee. *

*

*

* Indicate what will be done and by when.

Keep a record of the discussion.

Tell the employee the record will go on his personal file.




45

FAIR DISCIPLINARY MEASURES

•. What can be regarded as a fair and reasonable disciplinary measure for offenses relating to misconduct?



Previous instances of misconduct

- Dismissal for less serious instances of misconduct will generally be appropriate only if the employee had in the past been found guilty of misconduct and can be shown to have been aware of the fact that a further infraction could result in dismissal.

- Thus previous warnings play an important role in this regard. There is no fixed rule about the number of previous warnings that must precede dismissal. Often Company policy or practice, House Rules or Disciplinary

Codes will set out guidelines in this regard.

- If the final act of misconduct is not sufficiently serious to warrant dismissal, previous instances of misconduct may be taken into account. Such previous instances of misconduct must generally be related, that is, of a similar or related kind. But even where the present and previous instances of misconduct are unrelated, it may be possible for the employer to indicate a general pattern of conduct which makes the continued relationship between the employer and employee intolerable.

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What are reasonable and fair disciplinary measures having regard to the specific circumstances: fines




46

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……………………………………………………………………………………………………… warnings * warnings for misconduct should, in the normal way, be kept separate from warnings for poor work performance. Warnings for misconduct are, after all, directed at ensuring that the employee should behave better; warnings for poor work performance, by contrast, are directed at ensuring that the employee should work better. dismissal with or without notice

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Critical Step

Need/Purpose

Commentary

Preparation

1.

2.

Presiding Officer to convene the

Disciplinary Hearing.

Presentation of initiator's case.

47

* Disciplinary Hearing.

* To address the employee's breach of a prescribed standard of conduct.

* Initiator to determine if there are any witnesses to the event/incident, and obtain statements.

* When all information has been gathered differentiate between facts, opinions and hearsay.

* Decide whether it is necessary to have a disciplinary hearing, if so, give the employee notification.

* Prepare yourself with all the documentation & decide on questions to be asked.

* Furnish the employee with a copy of all the documentation that will be used during the hearing.

* Introduces and states the roles of the persons present.

* The Presiding Officer reads the notification to the employee & reminds the employee of his rights.

* Advises the employee of the procedures to be followed.

* Asks the employee how he pleads to the charge (i.e. guilty or not guilty).

* Explains the nature of the charge.

* Describes the circumstances surrounding the alleged misconduct.

* Produces evidence and calls witnesses.

* Presiding officer allows the employee or his representatives to cross-question the initiator and each witness before calling the next witness.




3. Presentation of employee's case.

48

* Presents his case.

* Describes the circumstances surrounding the alleged misconduct.

* Produces evidence and calls witnesses.

* Presiding officer allows the initiator to cross-question each witness before calling the next witness.

4. Closure of each party's case.

* Presiding officer asks questions of each side to obtain clarity and sufficiency of evidence.

* Each party summarises their case.

* Presiding officer summarises both cases to clarify understanding.

* Presiding officer adjourns hearing to determine guilt and sets venue, date and time for second stage.

5. Presiding officer to evaluate the evidence.

6. Hear evidence related to determining a fair and reasonable disciplinary measure.

* Independently and objectively evaluate the evidence.

*

*

Separate evidence into confirmed facts and opinions.

*

Decide merits of initiator's & employee's case on balance of probabilities.

Write down findings.

* Reconvene the hearing: specify the grounds and reasons for your decision.

* Communicate your findings in respect of the employee's guilt or innocence.

* Presiding officer explains the nature and purpose of the procedures to be followed.

* Initiator presents aggravating factors.

* Employee presents mitigating factors.




* Presiding officer asks questions to ensure clarity of understanding.

* Each side summarises their case.

* Presiding officer summarises and adjourns the hearing.

Sets date, time and venue for communication of sanction.

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7. Presiding officer to evaluate the evidence and determine a fair and reasonable disciplinary measure.

* Independently and objectively evaluate the evidence.

* Separate evidence into confirmed facts and opinions.

* Decide merits of initiator's & employee's case.

* Determine a fair and reasonable disciplinary measure.

* Write down findings: specify the grounds and reasons for your decision.

* Reconvene the hearing.

* Communicate your findings in respect of the disciplinary measure.



. The difference between criminal proceedings, civil proceedings and disciplinary hearings.

Company disciplinary enquiries are not courts of law and are not expected to be. However the problem is that their findings can be challenged in an Industrial Court or an arbitration proceeding and any weakness in either procedure or substance may result in a reversal of the enquiries decision.

This has particular implications with regard to evidence. It is in fact evidence which is the crucial factor with regard to issues of substantive fairness. Evidence in the disciplinary enquiry must be capable of standing up in an Industrial Court. Any case in which a lower standard for evidence is adopted is likely to be successfully challenged in court.




50

1. Alleged Offense. a. Primary Offense.

CHARGE SHEET

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2. Definition of the offense. (All these elements must be proved at the hearing).

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51

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3. Characteristics of this offense.

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4. Evidence to be gathered at the time of the investigation.

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5. Evidence to be presented and proved at the hearing by the initiator.

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6. Likely counter allegations or defenses. (Note, some defenses may excuse guilt, while others may call for a lesser sanction/disciplinary measure).

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7. Possible disciplinary action in terms of disciplinary code.

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53

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8. Evidence to be presented to determine sanction/disciplinary measure. a. Interest of the company. i. Aggravating. ii. Mitigating.

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