The security of employment is of the utmost importance for so many people, as it assures their survival for the foreseeable future.
The South African labour law regime was crafted in a way that seeks to protect employment security, since the bargaining power between employers and employees is somewhat skewed due to economic power between these two parties.
The employment relationship is contractual, whereby one-party consents to offer their services to the other party in return for compensation (wages, salary). Despite this being the case and owing to the different economic power of the parties, their bargaining muscle while entering the relationship is not the same and risks the employee entering into the agreement sometimes under unreasonable conditions.
Labour law therefore seeks to regulate and balance these competing rights to achieve an equitable labour system in South Africa.
Due to the aforesaid, some employers may indeed abuse this unequal bargaining power to the detriment of the employee. Labour laws in South Africa promote a fair process of dealing with disputes between employers and employees and to the extent that fairness is not achieved, a decision will be found against the non-compliant party.
There are basically two tenets upon which fairness is achieved in dealing with labour disputes in South Africa especially with regards to dismissals, substantive, and procedural fairness. In other terms, the reasons for the dismissal and the procedures followed must be fair, without which the dismissal may be declared unfair and invalid if challenged at relevant forums e.g CCMA, Labour Court.
It then becomes necessary that within the workplace these procedures are made known to the affected parties. A Disciplinary Code is a compilation of expected standards that all affected parties need to conform to in terms of their conduct within the workplace.
The Code addresses such issues as standards of conduct, offences, sanctions, procedures, appeals etc. Depending on the industry, size of the company and type of work involved, a Disciplinary Code is made in such a way that suits the requirements of that workplace, but that it must answer to the call for substantive and procedural fairness.
The availability of a Disciplinary Code will also force its application to be consistent, as the affected parties are privy to its requirements.
This is what the employer needs to ensure, otherwise applying the code to other employees and not to others in similar circumstances risks being challenged and declared unbinding. Employees on the other hand need to be aware of the code and to adhere to expected standards in the workplace.
If a rule has been breached, the form of discipline is basically determined by the nature of the breach, level of understanding of the rule on the part of the employee, and whether this can be redressed by other means besides disciplinary action.
For example, if the breach is minor and unintended, counseling the employee may be appropriate under the circumstances than taking disciplinary action. Counseling is aimed at putting the employee on an adequate level of understanding of the rules and expected standards so that conduct that invites disciplinary action may be avoided in future.
If counseling does not result in expected standards of conduct, then disciplinary action may be considered which may result in a verbal warning, written warning, final warning, suspension, demotion, or dismissal.
Suspension pending investigation should only be considered where the continued presence of the employee during investigations may jeopardize the process.
The employee must also be given an opportunity to motivate reasons against suspension. Upon the finalisation of the investigations the employer must then either close the case or have the employee arraigned before a formal hearing which the employee must be given notice to, not less than 3 days prior.
The notice must also inform the employee that they are entitled to representation i.e union or fellow employee, right to adduce and challenge evidence, witnesses, and to be in attendance. After the conclusion of the hearing and within reasonable time the decision of the hearing (Chairperson) must be communicated to the employee, with reasons. If the decision is found against the employee, the communication must also inform the employee of their options with regards to appeal.
The consequences of disciplinary action are dire and therefore the employer needs to tread carefully as this can be challenged if not done according to the tents of substantive and procedural fairness.
We assist employers to compile Disciplinary Codes, facilitate the holding of disciplinary procedures and hearings and representation in labour forums. We also assist employees to challenge unfair dismissals and unfair labour practices. Our Labour Department has attorneys who are well experienced and astute in this area of law.
Contact us for further guidance and assistance.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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