Workplace Discipline in South Africa: How Should Employers Handle Misconduct?

Workplace Discipline in South Africa: How Should Employers Handle Misconduct?

Managing misconduct is an unavoidable part of running a workplace.
But workplace discipline should not simply be about punishment. A sound disciplinary process establishes reasonable standards of conduct, gives employees clarity about what is expected of them and provides employers with a fair way to address misconduct when it occurs.
South Africa’s current Code of Good Practice: Dismissal provides guidance on how employers should approach discipline and dismissals under the Labour Relations Act.

Should employers have disciplinary rules?

Yes.
The Code recognises that disciplinary rules and procedures may differ depending on the size and nature of the employer’s business. It nevertheless provides that workplace rules should be clear and made available to employees in a way they can understand.
For medium and larger employers in particular, written disciplinary rules and procedures are preferable because they help establish the required standards of conduct and promote certainty and consistency.
Not every workplace rule necessarily has to be written down. Some standards may be sufficiently well established or commonly understood that employees can reasonably be expected to know them.

Does every offence require a disciplinary hearing?

No.
This is one of the areas where workplace discipline is often misunderstood.
The current Code expressly recognises that formal disciplinary procedures do not have to be used every time a rule is broken.
For minor misconduct, informal advice or correction may be the most appropriate response. Repeated misconduct may justify warnings, while more serious or repeated misconduct can warrant a final warning or, depending on the circumstances, dismissal.
The appropriate response therefore depends on the nature and seriousness of the misconduct and the surrounding circumstances.

Does an employer always have to issue warnings before dismissal?

No.
Progressive discipline is an important principle, but it does not mean that every employee must receive a verbal warning, followed by a written warning and then a final written warning before dismissal can ever be considered.
The Code recognises that a single instance of sufficiently serious misconduct may justify dismissal where the misconduct makes continuation of the employment relationship intolerable.
For less serious misconduct, progressive disciplinary measures are generally more appropriate.

What should an employer consider before imposing a sanction?

Disciplinary decisions should not be made mechanically.
When deciding whether a sanction for misconduct is fair, relevant considerations include whether:

• a workplace rule or standard was contravened;
• the rule or standard was valid and reasonable;
• the employee knew, or could reasonably have been expected to know, the rule;
• the rule has been applied consistently; and
• dismissal or another sanction is appropriate in the circumstances.

The seriousness of the misconduct and the circumstances surrounding the incident are therefore important.

What does procedural fairness require?

An employee should have a fair opportunity to respond to allegations of misconduct before a decision to dismiss is made.
The Department of Employment and Labour has emphasised that even under the newer, simplified approach to disciplinary procedure, employers still need a legitimate reason for dismissal and employees must be treated fairly and given an opportunity to respond.
Fairness does not necessarily require an employer to conduct a disciplinary process that resembles a court case.
The appropriate level of formality can depend on the workplace and circumstances, and the Code expressly recognises that smaller employers may use a less formal approach.

Why does consistency matter?

Consistency is an important consideration in workplace discipline.
Employers should avoid treating substantially similar cases differently without a legitimate reason.
This does not mean that every employee accused of similar misconduct must automatically receive exactly the same sanction. Individual circumstances can differ.
The important point is that an employer should be able to explain why a particular disciplinary outcome was appropriate in the circumstances.

Misconduct is not the same as poor performance

This distinction is particularly important.
Misconduct concerns an employee’s conduct, such as breaching a workplace rule.
Poor performance concerns whether an employee is meeting the required performance standard.
These issues should not automatically be handled through the same process.
The current Code deals separately with misconduct and incapacity, including poor work performance, and provides different guidance for these situations.
This is one reason employers should identify the real nature of a workplace problem before starting disciplinary action.

Can an employee challenge an unfair dismissal?

Yes.
Employees who believe that they have been unfairly dismissed may be able to refer an unfair dismissal dispute through the applicable dispute-resolution process, including the CCMA where it has jurisdiction.
A dismissal that lacks a fair reason or is carried out through an unfair process can therefore expose an employer to a labour dispute.
Good disciplinary practice is not simply about preparing for litigation. It can help resolve workplace problems fairly before they develop into larger disputes.

Dealing with workplace discipline?

Workplace misconduct can become complicated quickly, particularly where serious allegations, repeated misconduct or possible dismissal are involved.
DMF Attorneys assists employers and employees with disciplinary processes, workplace misconduct and labour disputes.

Contact DMF Attorneys for advice on workplace discipline and employment-law matters.