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                                                       EXERCISE 1
THE PURPOSE OF DISCIPLINE

     What in your view is the purpose of discipline?
                                                                                               2


                                                                             HANDOUT 1
                                                                              ANSWERS

THE PURPOSE OF DISCIPLINE

     What in your view is the purpose of discipline?

     “The key principle in the Code is that employers and employees should treat one another
     with mutual respect. A premium is placed on both employment justice and the efficient
     operation of the business. While employees should be protected from arbitrary action,
     employers are entitled to satisfactory conduct and work performance from their
     employees”.

     Extract from the Code of Good Practice: Dismissal – Item 1 (3)

     “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. Efforts should be made to correct
     employees’ behaviour through a system of graduated disciplinary measures such as
     counselling and warnings”.



     The purpose of discipline is accordingly to maintain acceptable standards of
           behaviour and performance in a fair manner.

STANDARD OF ACCEPTABLE CONDUCT




                                                         IF DEVIATION IS TOO
                                                         MUCH OR TOO
                                                         FREQUENT,
                                                         DISMISSAL RESULTS


     EMPLOYEE
     DEVIATES
     FROM
     STANDARD          DISCIPLINE
                       CORRECTS
                       CONDUCT

        To ensure that justice is done and seen to be done for the Department, accused,
         complainant and co-workers;
        To assist management to exercise it’s prerogative fairly;
                                                                               3


   To maintain discipline and stability in the workplace;
   To enhance productivity and effectiveness of education;
   To enhance the legitimacy of the management and its disciplinary system;
   To communicate the unacceptability of certain behaviour; and
   To be corrective initially, and to be punitive only as last resort.
                                                                    4


                                                         INPUT

APPROPRIATE SANCTIONS / CHOOSING THE APPROPRIATE PROCEDURE



THE SERIOUSNESS OF
   THE OFFENCE
 DETERMINES THE
 LEVEL OF ENTRY




                     INFORMAL ADVICE AND CORRECTION         MINOR
                                                            VIOLATIONS




                            COUNSELLING                VIOLATIONS
                                                       REPEATED


                                                 REPEATED
                             WARNINGS            VIOLATIONS
                                                 /MORE
                                                 SERIOUS
                                                 CONDUCT

                             DISMISSAL      SEC 17 OFFENCES
                                            SEC 18(5) OFFENCES
                                            AND SERIOUS OR
                                            REPEATED
                                            SEC 18(1) OFFENCES
                                                                                         5



                                                                                  OVERHEAD

                          PROCEDURE CONTAINED IN THE EMPLOYEMENT OF EDUCATORS
                          ACT




                          SCHOOL LEVEL PROCEDURES
                          (OR IMMEDIATE SUPERVISOR)



                                                      Principals (or immediate
                                                      superiors) may only issue up
                                                      to a final written warning –
DISCIPLINARY PROCEDURES




                                                      may not suspend or dismiss




                                                      Formal disciplinary
                                                      procedures should only deal
                                                      with cases where a
                                                      termination could result or
                                                      repeated transgression within
                                                      stipulated timeframe.

                          FORMAL DISCIPLINARY
                          PROCEDURE (ABOVE SCHOOL
                          LEVEL
                                                                                          6


                                                                            EXERCISE 2

DISCIPLINARY CODE AND PROCEDURES

With reference to the Disciplinary Code and Procedures for Educators (Schedule 2 to the
Employment of Educators Act), please answer the following questions.

1.     Item 4(1)(a) indicates that the function to deal with less serious misconduct will be
       delegated – to whom will that function be delegated in the school situation? Who
       deals with the misconduct if a principal commits misconduct?

2.     An educator has been coming late for a couple of months. The last occasion
       occurred yesterday. You have not yet spoken to the educator but now wish to
       manage the misconduct by using the Disciplinary Code and Procedures for
       Educators.

       2.1    When do you anticipate holding the disciplinary meeting?

       2.2    Can you include all the previous occasions on which the educator came in
              late, not just yesterday’s incident?

       2.3    When do you think you will be in a position to determine a sanction?

3.     Can you council an educator without convening a disciplinary meeting?

4.     What forms would you use for the following:

       4.1    A written warning.

       4.2    A final written warning.


5.     Where would the principal record a verbal warning?

6.     If you have issued a written warning how long does it remain valid for?
                                                                                         7


                                                                             EXERCISE


7.    A particular educator has had absenteeism problems and you have issued him with
      three warnings and a final written warning over the last two or three years.
      However in every case the previous warning had expired before you issued the
      next warning. You believe that the course of conduct shows his complete
      disregard for rules and you now wish to refer the matter for a formal enquiry in
      order to get the educator dismissed on the basis that his/her cumulative course of
      conduct indicates a disregard of rules – do you thing you will be successful?

8.    What do you do if the educator refuses to sign a written warning or a final written
      warning that you wish to give him/her?

9.    Is it correct that an educator may not appeal in the less formal disciplinary
      procedure? What procedure should be followed?

10.   What kind of cases should be referred into the formal disciplinary process?

11.   Does the fact that you are in an informal procedure and not using witnesses mean
      that you do not really have to have any evidence before imposing a sanction?

12.   Does the principal have authority to suspend an educator?
                                                                                          8


                                                                           HANDOUT 2
                                                                            ANSWERS

DISCIPLINARY CODE AND PROCEDURES

With reference to the Disciplinary Code and Procedures for Educators (Schedule 2 to the
Employment of Educators Act), please answer the following questions.

1.     Item 4(1)(a) indicates that the function to deal with less serious misconduct
       will be delegated – to whom will they be delegated in the school situation?
       Who deals with the misconduct if a principal commits misconduct?

       Normally the functions to manage discipline at a school level will be delegated to
       the principal. If the principal himself/herself commits misconduct, that principal’s
       immediate superior would have to manage the misconduct and initiate the
       proceedings in terms of the Disciplinary Code and Procedures for Educators.

2.     An educator has been coming late for a couple of months. The last occasion
       occurred yesterday. You have not yet spoken to the educator but now wish to
       manage the misconduct by using the Disciplinary Code and Procedures for
       Educators.

       2.1    When do you anticipate holding the disciplinary meeting?

              Within the next few days

       2.2    Can you include all the previous occasions on which the educator
              came in late, not just yesterday’s incident?

              No – Item 2(b) and Item 2(g) both put an emphasis on prompt discipline.
              The CCMA and other institutions have often declined to take into account
              misconduct which is raised to long after the event. There is also a
              principle that you cannot “store up” misconduct until you have a collection
              of offences which is serious enough to do something about. You must
              react to each and every instance where possible.
                                                                                          9


                                                                               HANDOUT
                                                                               ANSWERS


2.3   When do you think you will be in a position to determine a sanction?

      Ideally the entire process of the informal discipline would be over in
      approximately one week’s time.

3.    Can you counsel an educator without convening a disciplinary meeting?

      No. In terms of both Items 4(2)(b) and Item 6(b) a meeting must be convened.

4.    What forms would you use for the following?

      4.1    A written warning.

             Form A

      4.2    A final written warning.

             Form B

5.    Where would the principal record a verbal warning?

      The Act is not clear – presumably it could be recorded in the educator’s personal
      file.

6.    If you have issued a written warning how long does it remain valid for?

      Six months.
                                                                                           10


                                                                            HANDOUT
                                                                            ANSWERS



7.    A particular educator has had absenteeism problems and you have issued
      him with three warnings and a final written warning over the last two or
      three years. However in every case the previous warning had expired before
      you issued the next warning. You believe that the course of conduct overall
      shows his complete disregard for rules and you now wish to refer the matter
      for a formal enquiry in order to get the educator dismissed on the basis that
      his/her cumulative course of conduct indicates a disregard of rules – do you
      think you will be successful.

      No – the fact that a sanction is only valid for six months means that no attention
      whatsoever can be paid to it once it has lapsed – it is as if the educator has a
      completely clean record once the sanction has lapsed.

8.    What do you do if the educator refuses to sign a written warning or a final
      written warning that you wish to give her/him?

      See Item 4(4) and (5) where it states that the warning must then be handed over to
      the educator in the presence of another educator who signs in confirmation that the
      warning was conveyed to the educator.

9.    Is it correct that an educator may not appeal in the less formal disciplinary
      procedure? What procedure should be followed?

      Yes – the educator can file an objection which is filed together with the sanction in
      her/his personal file but no appeal is heard.

10.   What kind of cases should be referred into the formal disciplinary process?

      Cases in which a dismissal is likely – if the maximum sanction is likely to be a
      final written warning the matter should not be referred for a final enquiry.
                                                                                       11


                                                                          HANDOUT
                                                                          ANSWERS


11.   Does the fact that you are in an informal procedure and not using witnesses
      mean that you do not really have to have any evidence before imposing a
      sanction?

      This is not correct at all – any sanction that is imposed should still be based on
      factual evidence which is available even though it may not be presented at the
      enquiry. Thus the cautionary rules against believing hearsay, rumour etc. still
      apply and a person administering the disciplinary procedure should be satisfied
      that if the matter ever came before an arbitration, the Department would be able to
      fully support the conclusions he/she has come to.

12.   Does the principal have authority to suspend an educator?

      No – See Item 6 of the Disciplinary Code and Procedures for Educators.
                                                                               12



                                                                  OVERHEAD

PROCEDURE CONTAINED IN THE DISCIPLINARY CODE AND
    PROCEDURES FOR EDUCATORS

PROCESS                ITEM IN SCHEDULE           ISSUES
                       2

Misconduct                                    > Misconduct defined in Section 17 (1)
                                                and 18(1)


Decide whether less    Serious misconduct     >
formal or formal       referred for formal
procedure should be    disciplinary enquiry
used


Convene meeting        (4)6(b)                > Should be in writing
                                              > Should contain reasons why
                                                disciplinary process is being initiated
                                              > Allow educator time to prepare


Allow representation   (4)6(b)(1)             > Trade Union representative
                                              > Employee based at same institution


Repeat reasons why     (4)6(b)(1)             > Similar to “putting the charge”
procedure initiated


Educator heard on      (4)6(b)(3)             > Not necessary to call witnesses or lead
misconduct                                      evidence
                                              > Conduct inquisitorially
                                              > Conduct fairly
                                              > Try and establish facts without calling
                                                witnesses


Decide sanction        (4)6(c)                > From counselling to final written
                                                warning


Educator may lodge     (4)6(d)(1)             > Objection lodged
objection (NO                                 > No appeal allowed
APPEAL)
                                                                                          13


                                                                             EXERCISE 3


INFORMAL ADVICE AND CORRECTION

As we have seen the Code of Good Practice: Dismissal makes reference to informal
advice and correction as being one of the most effective ways of correcting minor
disciplinary problems. In essence it is the “on the job” corrective advice that a principal
would give to educators on a day to day basis to try and maintain standards without
invoking further procedures. What factors would make informal advice and correction
effective?
                                                                                                 14


                                                                                 HANDOUT 3
                                                                                  ANSWERS

INFORMAL ADVICE AND CORRECTION

    As we have seen the Code of Good Practice: Dismissal makes reference to informal
    advice and correction as being one of the most effective ways of correcting minor
    disciplinary problems. In essence it is the “on the job” corrective advice that a principal
    would give to educators on a day to day basis to try and maintain standards without
    invoking further procedures. What factors would make informal advice and correction
    effective?

          informal discipline does not usually take place in a formal venue. It can take place
           at any opportune venue

          generally speaking it will take place on a person to person basis without anybody
           else present

          notwithstanding the informality clear reference should be made to the standard or
           rules concerned so that the educator knows what is expected of him/her

          reference should also be made to the manner in which the educator is falling short
           of the standard or rule

          the approach to the educator should be made in an informal and friendly manner

          assume that the attaining of reasonable standards is a common goal between you
           and the educator

          it is a useful technique to question the educator as to whether there is any reason
           for the employee falling short of the required standard

          try and elicit a positive response from the employee i.e. some form of buy-in

          listen to the educator

          be sympathetic

          adopt a problem solving approach rather than a confrontational approach
                                                                                             15


                                                                                   INPUT

SUGGESTED PROCEDURE FOR INFORMAL DISCIPLINARY MEETING

ACTION                       PERFORMED BY                     CONTENT

 Stage 1

Opening the meeting          Principal (the principals role   Welcome attendees and make sure
                             would be filled by the head      everybody is introduced to the
                             of the institution in the case   meeting. The principal should create a
                             of non office based              clarity of purpose by stating why the
                             educators)                       meeting has been convened i.e. to deal
                                                              with alleged misconduct in terms of
                                                              schedule 2. The person should set out
                                                              the procedure to be followed in order
                                                              to create common perceptions around
                                                              the procedure that will be used.

 Stage 2

Outlining alleged misconduct principal                        principal should briefly describe the
                                                              alleged misconduct

 Stage 3                     Principal/Educator Or            The principal should ask the Educator
                             Educators representative         whether they acknowledge or deny the
Employees Response                                            misconduct. Educators responds.


 Stage 4

Deal with disputes of fact   Performed by all but             If there is a dispute of fact the
                             controlled by principal          principal should ascertain who could
                                                              assist in determining what happened.
                                                              The principal should call these people
                                                              one by one and ask them to tell the
                                                              meeting what happened. When they
                                                              finish the principal may ask questions
                                                              of clarity and thereafter the Employee
                                                              / Union Representative may ask
                                                              questions. The witness should then be
                                                              excused. If the principal is involved
                                                              as a “witness” then the principal
                                                              should make a statement as to what he
                                                              or she has knowledge about.
                                                                                    16


 Stage 5                       Educator/Educators   Educator should be formally asked to
                               Representative       state his/her case. The purpose is to
Educator states his/her case                        give the educator an opportunity to
                                                    deal with the allegations of
                                                    misconduct and to explain why the
                                                    misconduct occurred or to argue that it
                                                    did not occur.

 Stage 6

The closing initial phase      Principal            The principal should summarise the
                                                    proceedings. We believe that it is
                                                    preferable that the meeting be
                                                    adjourned to a fixed time and that the
                                                    chairperson indicates that he/she now
                                                    gives the matter consideration before
                                                    coming to a decision. It is not
                                                    unprocedural to make a finding and
                                                    improse a sanction there and then.
                                                    This will be particularly appropriate
                                                    where the educator does not contest
                                                    the misconduct at all.

 Stage 7

Finding on guilt/innocence     Principal            After consideration the principal
and imposing sanction                               should indicate whether or not he/she
                                                    has found that misconduct has been
                                                    committed and give brief reasons for
                                                    that finding. The principal should go
                                                    on to impose an appropriate sanction.


 Stage 8                       Principal            If there was counselling or a verbal
                                                    warning a record should be kept of
Recording of sanction                               this. If a warning or final written
                                                    warning is issued either Form A or B
                                                    should be completed and handed to
                                                    the educator. A copy should be kept
                                                    in the educator’s personal file.

 Stage 9

Notify employee of rights to   Principal            The educator should be advised of
object                                              his/her right to object and the fact that
                                                    no appeal exists.
                                                                                                17


                                                                                ANNEXURE AA

                 NOTICE OF AN INFORMAL DISCIPLINARY MEETING


Name:                 ______________________________________________
Persal Number:        ______________________________________________
School:               ______________________________________________
District:             ______________________________________________

You are hereby kindly requested to attend an informal disciplinary meeting that is
scheduled as follows:

Date of meeting:      ______________________________________________
Time of meeting:      ______________________________________________
Venue:                ______________________________________________
Transgression:        __________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

Date of transgression: _______________________________

Please be informed that you have the right to be represented by a fellow employee of this
institution or a union member. Do not prejudice yourself by being absent at this meeting as a
decision will be made in your absence.


PRINCIPAL
Date:

Receipt of the original notice is herewith acknowledged


_______________________________                            _____________________________
Signature                                                  Date:


_______________________________                            _____________________________
Signature of witness                                       Date:
(if applicable)
                                                                                       18


                                                                             ANNEXURE BB

                   FORM TO BE USED BY PRINCIPALS DURING AN
                      INFORMAL DISCIPLINARY MEETING

1.   Attendance:           Principal: ____________________________________________
                           Transgressor: _________________________________________
                           Representative: _______________________________________
                           Observer: ____________________________________________

2.   Nature of transgression: ___________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________

3.   Did the transgressor receive the notice of the informal disciplinary meeting?


      Yes                             No

4.   Summary of the employer’s case: ___________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________

5.   Summary of the transgressor’s case: _________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
                                                                                 19

6.   Conclusion/Finding by the Principal: _________________________________________
     ________________________________________________________________________
     ________________________________________________________________________
     ________________________________________________________________________

7.   Sanction given by Principal: ________________________________________________

8.   Motivation for the sanction: ________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________
     _______________________________________________________________________

9.   Was the transgressor informed of the right to an objection?


      Yes                                No


___________________________________
Signature of Principal

___________________________________
Date:


___________________________________
Signature of Transgressor

___________________________________
Date:
                                                                                      20

                                                                          EXERCISE 4

STANDARDS IN THE EMPLOYMENT OF EDUCATORS ACT

Please answer the questions below.

1.     Set out below are some examples of misconduct. Please insert in the column on
       the right which sub-section of either Section 17(1) or 18(1) of the Employment of
       Educators Act, that particular misconduct must be categorised under. Some
       misconduct may fall under more than one category. The first example has been
       done to illustrate how the exercise should work.

       Example of Misconduct                     Applicable Sub-Section
       Theft                                     Section 17.1 (a); 18.1(a); 18.1(c);
                                                 18.1(dd)
       Absenteeism
       Alcohol or drugs
       Sexual harassment
       Assault
       Misrepresentation
       Insubordination
       Nepotism
       Drunk on duty
       Late coming

2.     In question 1 above you will see that certain misconduct can be categorised under
       different sub-sections of the Employment of Educators Act. If you were drawing
       up the charges against someone who had committed misconduct do you think it is
       better to try and put in as many charges as possible or to limit yourself to the
       charge that most adequately describes the misconduct?

3.     The Employment of Educators Act specifies two different types of misconduct,
       the one category in Section 17 and the other category in Section 18. What do you
       think the purpose is of differentiating between the two categories of misconduct?

4.     Is it necessary to hold a disciplinary enquiry to deal with Section 17 misconduct?
       (See Section 17(2))

5.     Is it necessary to hold some form of disciplinary meeting to deal with misconduct
       in terms of Section 18.1? (See 18 (2))
                                                                                       21




                                                                        HANDOUT 4
                                                                         ANSWERS

STANDARDS IN THE EMPLOYMENT OF EDUCATORS ACT

Please answer the questions below.

1.     Set out below are some examples of misconduct. Please insert in the column on
       the right which sub-section of either Section 17(1) or 18(1) of the Employment of
       Educators Act, that particular misconduct must be categorised under. Some
       misconduct may fall under more than one category. The first example has been
       done to illustrate how the exercise should work.

        Example of Misconduct            Applicable Sub-Section
        Theft                            Section 17.1(a); 18.1(a); 18.1(c); 18.1(dd)
        Absenteeism                      Section 18.1 (j); 18.1(ee)
        Alcohol or drugs                 Section 17.1 (e); 18.1(p)
        Sexual harassment                Section 17.1 (b); 18.1(a); 18.1(q); 18.1(t)
        Assault                          Section 17.1 (d); 18.1(q) ; 18.1(r)
        Misrepresentation                Section 18.1 (z); 18.1 (aa)
        Insubordination                  Section 18.1(f); 18.1(l); 18.1(q); 18.1(t)
        Nepotism                         Section 18.1(g)
        Drunk on duty                    Section 18(f); 18(l); 18(p); 18(q)
        Late coming                      Section 18(a); 18(f); 18(i); 18(j)

2.     In question 1 above you will see that certain misconduct can be categorised
       under different sub-sections of the Employment of Educators Act. If you
       were drawing up the charges against someone who had committed
       misconduct do you think it is better to try and put in as many charges as
       possible or to limit yourself to the charge that most adequately describes the
       misconduct?

       It is better practice to try and focus on that sub-section of the Employment of
       Educators Act which most specifically describes the misconduct. To describe the
       same misconduct under various sub-sections leads to what is called the “splitting”
       of the charge which is not allowable in criminal law and is not consideration fair
       in labour law. The best practice is therefore to try and make the charge as simple
       and as accurate as possible.
                                                                                      22




                                                                        HANDOUT
                                                                        ANSWERS


3.   The Employment of Educators Act specifies two different types of
     misconduct, the one category in Section 17 and the other category in Section
     18. What do you think the purpose was of differentiating between the two
     categories of misconduct?

     The misconduct listed in Section 17.1 leads to automatic dismissal and is therefore
     categorised as very serious. The misconduct specified in Section 18.1 may lead to
     a variety of sanctions from counselling through to dismissal. It would seem that
     the legislators wanted to send a clear message to educators that certain conduct
     was absolutely unacceptable and the consequence of committing that misconduct
     would always be dismissal.

     Section 18(5) is confusing as it would seem to suggest that an educator may only
     be dismissed for the specified misconduct, - but this can not be correct. Persistent
     late coming or absenteeism, for example, may also lead to dismissal if dealt with
     progressively and the educator fails to react to warnings.

     4.     Is it necessary to hold a disciplinary enquiry to deal with Section 17
            misconduct? (See Section 17(2))

     Yes

     5.     Is it necessary to hold some form of disciplinary meeting to deal with
            misconduct in terms of Section 18.1? (See 18(2))

     Yes – the difference here is that a formal disciplinary enquiry would only be
     instituted in the event that a dismissal was likely. If the appropriate sanction
     would have been a final written warning or some lesser sanction, the matter should
     be dealt with by the principal at school level or the employee’s immediate
     supervisor.
                                                                                             23



                                                                               EXERCISE 5


      APPROPRIATE SANCTION

      Set out below are a number of mini case studies. Indicate in the columns set out below at
      what level of discipline you believe the conduct described in the mini case study should
      be dealt with.

MINI CASE           INFORMAL    COUN-        VERBAL       WRITTEN       FINAL        FORMAL
STUDY               ADVICE      SELLING      WARNINGS     WARNINGS      WRITTEN      DISCIPLINARY
                                                                        WARNING      PROCEDURE
Theft
Inappropriate
dress standards
(first time)
Educator not
keeping up with
curriculum
Late coming
(third time)
Insubordination
Bad attitude
Negligence
Smelling of
alcohol
Repeatedly
comes to work
drunk and
refuses to accept
assistance
Absenteeism
Assault
Untidy
Sexual
harassment
Breaching rule
(smoking in no
smoking area)
Refusal to obey
an instruction
                                                                                               24



                                                                                HANDOUT 5
                                                                                 ANSWERS


      APPROPRIATE SANCTION

      Set out below are a number of mini case studies. Indicate in the columns set out below at
      what level of discipline you believe the conduct described in the mini case study should
      be dealt with.

MINI CASE           INFORMAL    COUN-        VERBAL       WRITTEN       FINAL        FORMAL
STUDY               ADVICE      SELLING      WARNINGS     WARNINGS      WRITTEN      DISCIPLINARY
                                                                        WARNING      PROCEDURE
Theft                                                                                      X
Inappropriate          X            X
dress standards
(first time)
Educator not                        X            X             X
keeping up with
curriculum
Late coming                                                    X            X
(third time)
Insubordination                     X            X             X            X              X
Bad attitude           X            X
Negligence                                       X             X            X              X
Smelling of                         X
alcohol
Repeatedly                                                                                 X
comes to work
drunk and
refuses to accept
assistance
Absenteeism                                                    X            X              X
Assault                                                                     X              X
Untidy                 X            X
Sexual                                                                      X              X
harassment
Breaching rule         X            X            X
(smoking in no
smoking area)
Refusal to obey        X            X            X             X            X              X
an instruction
                                                                                            25



                                                                                  INPUT


EVIDENCE

The maintaining of standards of discipline should be approached in a problem solving
way. However at the level of disciplinary enquiries it becomes adversarial. The effect is
that discipline at this level can be damaging to relationships.

It is therefore important that complaints against employees should be based on facts or
evidence that are sustainable at the level of a disciplinary enquiry and, at a later stage, at
an arbitration. There is little point in initiating discipline against an employee only for the
matter to be thrown out at the disciplinary enquiry stage or alternatively overturned at the
arbitration stage. While it is critical to maintain discipline and standards it is equally
important not to initiate discipline or to prevent disciplinary steps being taken when there
is no hard evidence to back the complaints against the employee concerned.

The main form of evidence that can be used are:

      Eye witnesses accounts (not hearsay or rumour)

      Documents (such as production sheet, clock cards etc)

      Photographs, videos etc

In applying discipline be careful that you base your actions on sound evidence.
                                                                                         26



                                                                            EXERCISE 6


CASE STUDIES

Consider the mini cases set out below and decide, what you believe the appropriate
sanction should be (if any).

1.     An educator has a sexual relationship with a learner. The learner’s parents are
       very upset and demand, through the department that the educator be discharged.

2.     An educator is found drunk on duty.

3.     An educator is convicted of assault in the criminal courts after he got involved in a
       fight at a pub while off duty. The fight did not involve anyone from the school.

4.     An educator is found guilty in the criminal court of having sexually abused his
       neighbour’s child while baby sitting that child.

5.     An educator has been making unwelcome sexual advances to another educator.
       When he passes her in the corridor he often touches her and in front of other
       colleagues, suggested that she come home to his house after school.

6.     A particular educator is obtaining extremely poor results from his class.

7.     An educator has been coming to work very sloppily dressed contrary to the dress
       code of the school.

8.     A principal administers corporal punishment to a learner.

9.     An educator is running a taxi business. When you approached him about this he
       says that as far as he knows everyone in the Education Department has got another
       business and why should he be singled out?

10.    An educator has stolen 2 exercise books.
                                                                                          27



                                                                           HANDOUT 6
                                                                            ANSWERS

CASE STUDIES

Consider the mini cases set out below and decide, whether in your opinion, disciplinary
proceedings should be started and, if so what you believe the appropriate sanction should
be if the educator is found guilty.

1.     An educator has a sexual relationship with a learner. The learner’s parents are
       very upset and demands, through the department that the educator be discharged.

       In terms of Section 17.1(c) it would be automatically dismissable conduct if an
       educator were to have a sexual relationship with the learner at the same school.
       The Act does not deal with the situation where an educator has a sexual
       relationship with a learner at another school and presumably that would then be
       permissible. Dependent on the circumstances then disciplinary action should be
       instituted and dismissal may result.

2.     An educator is found drunk on duty.

       Generally speaking the first instance of alcohol abuse will not lead to a dismissal.
       A counselling procedure should be undertaken to investigate whether there may be
       a health problem i.e. an addiction to alcohol which would benefit from a
       rehabilitation programme. If there is no underlying health problem them
       progressive discipline should be used. It is highly unlikely however that an
       educator would be drunk on duty on a number of occasions without having an
       underlying alcohol problem. An educator who refuses to take part in a
       rehabilitation program is guilty of misconduct in terms of Section 18.1(cc) (i).

3.     An educator is convicted of assault in the criminal courts after he got
       involved in a fight at a pub while off duty. The fight did not involve anyone
       from the school.

       In order to be guilty of misconduct the educator must have breached a rule that is
       relevant to the work place. While conviction of a criminal offence is technically
       misconduct in terms of Section 18 of the Employment of Educators Act only
       certain misconduct which impacts on the employment relationship could be acted
       on. In this situation there seems to be no real reason why what occurred off school
       premises should result in disciplinary action being taken against the educator.
                                                                                        28



                                                                          HANDOUT
                                                                          ANSWERS

CASE STUDIES

4.   An educator is found guilty in the criminal courts of having sexually abused
     his neighbour’s child while baby sitting that child.

     Unlike the situation in the question above, in this situation the criminal
     misconduct is directly related to the employment relationship as the educator
     would be the custodian of children. Disciplinary action should be instituted and
     would probably lead to dismissal.

5.   An educator has been making unwelcome sexual advances to another
     educator. When he passes her in the corridor he often touches her and in
     front of other colleagues, suggested that she come home to his house after
     school.

     Sexual harassment has been viewed by arbitrators as being extremely serious and
     this type of behaviour would usually lead to a dismissal.

6.   A particular educator is obtaining extremely poor results from his class.

            Dismissal would probably be unfair – it is a question of incapacity:
     poor performance and should be treated as such. A counselling procedure
     should be followed.

7.   An educator has been coming to work very sloppily dressed contrary to the
     dress code of the school.

             This is a matter which should probably initially be dealt with by way
     of informal advice and correction and should only escalate to counselling and
     other disciplinary sanctions if there is a refusal to adhere to proper
     standards.

8.   A principal administers corporal punishment to a pupil

     Corporal punishment is an assault and would fall under Section 17.1(d) (automatic
     dismissal); or under 18.1(i) – failure to carry out a lawful order or under 18.1 (r)
     dealing with assault. It is probable that a dismissal would result as corporal
     punishment would be a violation of a Constitutional right.
                                                                                      29




                                                                          HANDOUT
                                                                          ANSWERS

CASE STUDIES

9.    An educator is running a taxi business. When you approached him about this
      he says that as far as he knows everyone in the Education Department has got
      another business and why should he be singled out?

      In terms of Section 18 of the Employment of Educators Act this is misconduct and
      disciplinary procedures should be initiated. However there is a principle that
      discipline must be consistent and if it is, in fact, the situation that many other
      educators are running their own business but not being disciplined, discipline
      would not be the appropriate response. A law which is universally ignored cannot
      be applied selectively.

10.   An educator has stolen 2 exercise books.

      Generally speaking theft, irrespective of the amount involved, is treated as a
      dismissable offence as it destroys any relationship of trust between employer and
      employee. The reasoning goes that if an employee is prepared to steal small
      items, that employee, given an opportunity, will steal more valuable items. In one
      of the leading cases, the Labour Appeal court held that it was fair to dismiss an
      employee for stealing one can of fanta. There have however been cases in which
      the Industrial Court or the CCMA has not dismissed for theft- in these cases there
      were compelling mitigating factors.
                                                                                                30



                    NOTICE OF INFORMAL DISCIPLINARY MEETING


Mr C L Longfoot
Katleho School
Motheo District


Dear Mr Longfoot

You are hereby given notice to attend the Less Serious Disciplinary Meeting in terms of item 4 of
Schedule 2 of the Disciplinary Code and Procedures for Educators.

Date:                28 February 2005
Time of meeting:     15hoo
Venue:        Principals Office

                                          CHARGE 1

You have contravened Section 18 (1) (j) of the Employment of Educators Act, 76 of 1998, in that
from 21-24 February 2005 you were absent from work without a valid reason or permission.

                              ALTERNATIVE TO CHARGE 1

You have contravened Section 18 (1) (f) of the Employment of Educators Act, 76 of 1998, in that
you unjustifiably prejudiced the administration, discipline or efficiency of the school, when you
were absent from work without a valid reason or permission from 21-24 February 2005.

Please be informed that you have the right to be represented by a fellow employee or union
member. Do not prejudice yourself by not attending the meeting, as a decision will be made in
your absence.

Yours sincerely




PRINCIPAL
KATLEHO SCHOOL
Date:
                                                                                               31

                                      ABSCONDMENT

Definition

In terms of the dictionary definition, there is no word such as abscondment. The word is derived
from the verb, “abscond”, which means to runaway, escape, leave suddenly, make off, flee, or
run off. For the purpose of this document, a definition of the word “abscondment” has been
formulated to clearly explain to the reader and create a common understanding of the word
abscondment. The word “abscondment” can be defined as, absenteeism from official duties
without permission or consent of the employer for a specific period which results in failure by
employee to fulfil his/her contractual obligation”.

LEGISLATIVE PROVISION IN TERMS OF EDUCATORS

In terms of section 14 (1) (a) of the Employment of Educators Act, 1998 (No 76 of 1998) an
educator is deemed to have been discharged on account of misconduct where he/she is absent
from work for a period exceeding 14 consecutive days without the consent of the employer.

LEGISLATIVE PROVISION IN TERMS OF PUBLIC SERVANTS

In terms of section 17 (5)(a)(i) the Public Service Act, 1994 a public servant is deemed to have
been discharged from service for absenting him/herself from his/her official duties without
permission for a period exceeding one calendar month.

Important clauses in both sections of the said Acts

       “Absenteeism without consent/permission of the employer”.

The absenteeism without the permission in this regard means that no official application form for
any relevant type of leave was submitted in advance. This means that the employer has no
information regarding the whereabouts of the employee concerned.

       “For fourteen consecutive days (Educators) or a period exceeding one calendar month
       (Public Service)”.

The abscondment can only be regarded as valid if the period of absenteeism is continuous and
there is no break in between.


PROCEDURE TO IMPLEMENT ABSCONDMENT: EDUCATORS AND PUBLIC
SERVANTS

When an employee is absent without consent of the employer the supervisor of the employee
must determine the reason for the absence and try to locate and persuade the employee to report
for duty. If the employee is still not reporting for duty a letter must be served on employee to
inform him about the consequences of his actions (Example at Annexure A).
                                                                                                32

The letter in the case of educators must be served after seven (7) days of absence and for public
service employees after 14 days of absence. If the whereabouts of the employee is unknown the
letter must be sent per registered mail to the last known address of the employee.

If the employee is still not reporting after 14 working days for educators or after one calendar
month (30) consecutive days for public service employees the principal must submit the
following documents within two (2) days to the District Labour Relations Officer via his line
function:

   o Copy of the letter served on employee. (copy of registered slip)
   o Copy of attendance register.
   o A letter wherein the principal indicates the procedure they followed to locate the
     employee and their request to terminate his/her service.

The Labour Relations Officer on receipt of this request must within two (2) days prepare a
submission to the Superintendent General to terminate the service of the employee.

The Labour Relations Officer must implement the decision of the Superintendent General within
two (2) days from receipt of the submission. The Labour Relations Officer will forward the
termination letter to the relevant school to serve the termination letter on the employee, if the
employee has been located after he/she has absconded. The employee must acknowledge receipt
of the letter.

In case the employee can still not be located, the letter must be sent per registered mail to the
employee’s last known address in his/her personal file.

An employee should not be allowed to resume duties once the abscondment has been
implemented. If the employee feels that the termination of service was unfair he/she can apply to
the Superintendent General in terms of section 14 (2) of the Employment of Educators Act, 1998
(No 76 of 1998) in the case of an educator and in terms of section 17 (5) (b) of the Public Service
Act, 1994 in case of public service employee, for re-instatement.


References:

Employment of Educators Act, 1998
Public Service Act, 1998
The English Oxford Dictionary
Legal Services and Labour Relations Circular, no 7 of 2004

				
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