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PART 2: DISCIPLINARY ACTION AND THE DISCIPLINARY CODE AND PROCEDURE

In this series of articles, we unpack practical pointers for employers as a troubleshooting guide, based on frequently seen problems and questions raised by employers.

The focus of Part 2 is disciplinary action and the Disciplinary Code and Procedure.  Below is some advice to consider:

  1. Clearly differentiate between Misconduct and Incapacity as substantive grounds for dismissal. Do not address performance improvement procedures in the Disciplinary Code and Procedure.
  1. A precautionary suspension, pending an investigation or disciplinary enquiry, is always with pay and must be distinguished from a suspension without pay which is a disciplinary sanction.
  1. Disciplinary enquiries need not run like criminal trials in order to be procedurally fair. The primary requirement of procedural fairness is to allow the employee an opportunity to fully respond to the allegations against him or her.
  1. Reserve formal disciplinary action for serious infractions which may merit dismissal. Managers should be empowered to issue warnings to employees, provided of course that an informal disciplinary process has first been followed.
  1. Ensure that the Disciplinary Code and Procedure has not been incorporated as a term and condition of employment. If so, employers may breach the contract in an instance of non-compliance, despite the fact that a fair procedure, which is aligned to the Code of Good Practice as set out in Schedule 8 to the Labour Relations Act (“LRA”), was followed.
  1. An internal appeal procedure is not prescribed by the LRA and often serves little purpose, particularly in instances where an external and independent chairperson has presided over the disciplinary enquiry.

Should you require any more information on the subject, please contact our partner Melanie Hart at melanie@bv-inc.co.za.

Part 3 of the series will address Poor Performance Management.