During a disciplinary hearing, the sanction to be imposed is a matter for the chairman to decide. The sanction must be fair and equitable – also non-discriminatory, consistent with past similar offences by other employees under similar circumstances, and consistent with the employer’s Disciplinary Code and Procedures. One can only complete this process successfully if the process is approached with an open mind and without any emotional influence.
The thinking and decision-making process starts at the employer’s disciplinary code. The disciplinary code will and always must be the starting point before one can embark on this very important journey. The sanction imposed by a chairperson directly effects the lives of both the employer and employee, and in the unfortunate instance of dismissal a whole family and other people depending on the income of the dismissed employee.
The importance and application of the disciplinary code cannot be exaggerated. If the disciplinary code states that for the first offense a verbal warning will be issued; for the second offense a written warning; for the third offense a final written warning and for the fourth offense a dismissal, then it must be followed.
An employee can be dismissed for a first offense with no prior warnings or prior offenses. It all depends on the disciplinary code and evidence led at the hearing, the seriousness of the offense, the circumstances under which it was committed, the mitigating and aggravating circumstances, and the elements of consistency and fairness.
It is vitally important that the employer act in accordance with his disciplinary code every time an offence is committed. No employee must be permitted to ‘get away with it’ under any circumstances. By overlooking the trespass or by ignoring it or allowing it to slip by, the employer is in fact condoning the offense and very soon the offense becomes the accepted standard.
Equally important is that the employer must take formal disciplinary action every time an offence is committed and not merely counsel the employee. Disciplinary procedures are applied where an employee broke a rule or standard in the workplace.
The following factors should be considered when applying an appropriate sanction:
- The gravity of the misconduct.
- The employee’s circumstances, including length of service, previous disciplinary record and personal circumstances.
- The nature of the job.
- The circumstances of the infringement itself.
The weight of these factors will correlate inversely with the gravity of the misconduct.
Reform rather than retribution is the objective of discipline in the workplace. It is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The principle underlying the concept of intolerability is not hard to find – employers are not expected to retain the services of employees who have, by their intentional and blameworthy conduct, destroyed the trust upon which the employment relationship rests to an extent that it can’t be revived.
ABOUT THE AUTHOR
Nadia Brits obtained her BCom Law and LLB degrees from the University of Pretoria in 2007 and 2009 respectively. She completed her articles at the Legal Aid Board and joined the Cape Town SEESA Labour office in March 2014 as a legal advisor.