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.