Disciplinary procedures are, first and foremost, a process to attempt to correct unacceptable employee behaviour. There are of course many occasions when dismissal for a first offence is fair and justified, such as in cases of gross dishonesty, breaches of safety protocols and assault. However, as a general observation, employers tend to utilise disciplinary action more for dismissal than correction.
As a rule of thumb, alleged unfair dismissal cases are easier to defend at the CCMA and bargaining Councils if there is a history of progressive discipline, than is the case when the employee, at face value, has no history of progressive discipline.
Item 3 (2) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) states that “The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them”. Importantly, it continues that “Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings”.
We see in practice that less serious, and occasionally, regular acts of relatively minor misconduct are frequently overlooked by employers. Yet, as we see all too often, an employee may commit the same act of relatively minor misconduct once too often in the eyes of the employer, who then seeks the dismissal of the employee for repetition of the minor act of misconduct over time. Such an example could include habitual late-coming. The employee may indeed have a horrendous poor time-keeping record, but if no prior, timeous corrective or progressive disciplinary sanctions were applied in those instances, this employee with a poor time-keeping record has an unblemished disciplinary record, when they ought to have, for example, had a final written warning for this offence on file.
All too often we see employers rue the fact that they did not apply prior progressive discipline.
Item 3(3) of the Code of Good Practice: Dismissal confirms that “Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious or repeated misconduct may call for a final warning, or other action short of dismissal”.
Item 3(4) of the Code of Good Practice: Dismissal emphasises the importance of progressive discipline even further in stating that “Generally, 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 issuing of progressive disciplinary warnings is relatively simple. There are typically three levels of disciplinary warnings, verbal warnings (typically valid for three months), written warnings (typically valid for six months) and final written warnings (typically valid for twelve months). Before any warnings are issued, the employee should be given an opportunity to explain themselves, before the employer decides whether the employee is ‘probably’ guilty of the misconduct, prior to selecting an appropriate sanction (warning).
No formal disciplinary hearings are necessary before issuing a disciplinary warning.
In the final analysis, disciplinary warnings are an attempt to bring an employee’s attention to unacceptable conduct, in the hope that they will refrain correct their conduct going forward. Whilst most employees will correct unacceptable conduct with simple counselling and informal measures, other employees will not do so until such time as disciplinary steps are taken against them more formally.
It is generally accepted that employers should develop a disciplinary procedure and code which outlines the employer’s in-house disciplinary procedures, and establishes a company disciplinary code which as appropriate for the nature of the employer’s business.
The tense uncertainty as to whether employers will be entitled to impose mandatory Covid19 vaccine policies on employees is already a hot topic, and it’s going to become even more so in the coming months, as vaccines arrive in the country and the vaccine drive begins. The answer to this conundrum is, perhaps understandably, unclear. There are many factors which will go into ultimate legal direction on whether employers will be able to make vaccines compulsory for employees and job applicants.
One thing I for sure, many employers will be eager to have all their employees vaccinated for numerous justifiable reasons.
Few countries having laws which explicitly permit or prohibit employers from mandating vaccines, and South Africa is no different. A recent (29 January 2021: Vol. XI, Number 29) of the USA National Law Review noted that “employers cannot mandate vaccination in the European Union, nor can governments justify it from the point of view of personal freedom. In Chile, the possibility of employer-mandated vaccination is under discussion, and in Canada, employers could consider, for example, access restrictions to the workplace where employees refuse the vaccination”.
But what about the South African workplace? Let’s start with the case for making vaccination compulsory at work.
The point of departure is the Occupational Health & Safety Act. You don’t need to look much further than section 8 of this Act, General duties of employees to their employees, to find pretty much everything there is to know about exactly what steps employers must take to ensure a healthy and safe workplace. A simple reading of section 8 of the Act all but confirms that mandatory vaccination in workplaces should easily pass legal scrutiny.
For starters, the Act compels employers to not only ensure the safety of its employees, but in fact all persons on the employer’s premises. This would include, for example, sub-contractors, visitors and anyone else who enters the employer’s premises. What’s more, this obligation to ensure the safety of all employees and any other person in the workplace must be undertaken proactively by the employer, as confirmed in a Labour Appeal Court judgment in Pikitup (Soc) Ltd v SAMWU [LAC: 2014].
It’s not a stretch to assume that a mandatory Covid19 vaccine policy would be one such proactive measure in the face of the pandemic.
The Act defines ‘occupational hygiene’ as meaning the “anticipation, recognition, evaluation and control of conditions arising in or from the workplace, which may cause illness or adverse health effects to persons”. Covid19 quite plainly “may cause illness or adverse health effects to persons”. Section 8(2)(b) of the Act compels employers to “eliminate or mitigate any hazard or potential hazard to the safety or health of employees, with section 8(2)(g) adding that it’s not only employees who are the focus of a healthy and safe work environment, but indeed “every person … on the premises”. This would include sub-contractors, visitors and any other person who enters the employer’s workplace.
Employees too have statutory Occupational Health & Safety Act obligations in that, says section 14 of the Act (Employee Duties), employees must “take reasonable care of the health and safety of himself and others who may be effected by his acts or omissions”. Does refusal to be vaccinated not adversely affect the “health and safety of himself and others” in the workplace? Surely it does?
It’s hard to argue against the fact that a simple reading of the Occupational Health & Safety Act all but confirms that will have a legal right to require employees to be vaccinated. However, and importantly, these statutory employer and employee obligations to ensure a safe and healthy workplace must be weighed up against certain human rights contained in the Bill of Rights in the South African Constitution.
Key Constitutional rights in this debate are the right to human dignity, bodily integrity (control over one’s body), religious and cultural beliefs. Let’s not forget however that all rights are subject to section
Key in the debate as whether or not employers can require employees to have the Covid19 vaccine is whether, or not, section 36 of the Constitution, Limitation of Rights, will ultimately be judged to limit the Constitutional rights to human dignity, bodily integrity, religious and cultural beliefs, in favour of mandatory vaccination, on grounds that these rights can, in the circumstances, be justifiably and reasonable limited, in the interest of public health and fighting the pandemic.
Another key consideration is the fact that in unionised environments, an employer can enter into collective agreement which makes vaccination compulsory for the entire workforce.
Yet another aspect of potential mandatory vaccination policies is potential for an employer to be sued by way of a civil claim, for any medical adverse effects, on an employee.
Perhaps the best compromise, is to permit mandatory Covid19 workplace vaccine policies, with the potential for exceptions based on justifiable medical, cultural and religious grounds, or to legislate for mandatory vaccination of employees in workplaces at greater risk of infection, such as mines and other workplaces which are characterised by enclosed, poorly ventilated working environments.