Whenever you need to take disciplinary action against an employee for alleged misconduct there are 5 important factors you (the employer) should take into consideration. Before any action is instituted against an employee, ask yourself these 5 questions:
- Is there a rule?
The obligation is on the employer to prove that he/she did implement a rule. For example, if there is a zero tolerance policy for certain misconduct, this rule should have been implemented before action is taken against employees.
- Is the employee aware of the rule?
The onus is also on the employer to prove that the employees were aware of the rule when the misconduct took place. To prove this the employer can make use of his/her disciplinary code which is usually attached to the contract of employment, previous warnings and daily practice in the workplace.
- Is the rule fair and reasonable?
A rule in the workplace can’t be ridiculous. For example, a rule stating that employees are not allowed to be on their private cell phones during lunch and tea breaks will be a ridiculous rule.
A rule can’t victimise or discriminate against certain employees. For example, a rule stating that male employees are allowed to work on their private cell phones but not female employees, will come down to discrimination based on gender.
- Is the rule consistently applied?
The employer should be able to prove this by stating that what goes for one, goes for all. The same disciplinary code should be applied to all employees in the workplace with no exceptions.
- Is the sanction appropriate?
The test an employer can use here is to determine whether the employee’s misconduct renders the employment relationship intolerable.
If you answer no to one of these questions, you can’t proceed with the disciplinary action. Should you answer yes to all of them there should be no hassles for an employer as the initiator in a disciplinary hearing.
ABOUT THE AUTHOR
Ruan Vlok obtained his LLB degree from the University of the Free State and was admitted as an Attorney of the High Court of South Africa in April 2015. He is a legal advisor for SEESA Labour and SEESA BEE at our Bloemfontein office.