MANAGING DISCIPLINE IN THE PUBLIC SERVICE LEGAL FRAMEWORK Origin of the law governing the employment relationship The employer-employee relationship has been evident since the earliest societies. In Ancient Rome the vineyard owner paid people to harvest his grapes. In medieval England, the innkeeper paid someone to sweep the inn. Law is the mechanism used to regulate employment relationships. The law of Ancient Rome has influenced nearly all our modern systems of law. Roman law was the foundation of the law developed in Holland in the 15th and 16th Centuries (called Roman-Dutch law), which was transported to the Cape Colony with Van Riebeck in 1652. This law is known as the common law in South Africa and deals with many legal issues. Within the common law, the law of contract emerges as a distinct area of law regulating the rights and duties of the parties entering into contracts, such as the purchase of a cow, the renting of a field, etc. The relationship between an employer and an employee is also governed by the common law of contract. The employer contracts with the employee to hire the employee’s labour or services in return for remuneration. With industrialisation in the 18th Century, large-scale employment became necessary for industry, manufacturing, mining, etc. and although the common law of contract provided the legal framework for employment contracts, it proved inadequate to regulate modern employment law. Consequently, lawmakers – the legislature, has stepped in and passed laws, called Acts of Parliament or statutes, specifically designed to regulate employment and labour relations. The statutory labour laws in South Africa operate alongside the common law to define the rights and duties of employers and employees. The State as Employer Before 1990, government policy was strongly opposed to extending labour rights to employees of the state. During 1993, public service trade unions won basic labour rights for public servants and teachers. Legislation, such as the Public Services Labour Relations Act, was promulgated to deal specifically with the management of labour rights, collective bargaining and the resolution of disputes within the public service; Public service bargaining councils were established. The way in which public service employees and their employment relationships with the state was separate and distinct from the approach adopted in the private sector became a bone of contention in some circles leading to concerted efforts by organised labour to promote a single system of statutory regulation for all employees. Prior to the promulgation of the new 1995 LRA, there had been much academic debate around the wisdom of lumping public service employees together with employees in the private sector under one piece of umbrella legislation. One cogent reason put forward to justify the separation of legislative control was the fact that the public service, unlike private sector employers did not have a profit margin to be massaged during wage negotiations because funding remained in the hands of the fiscus. Irrespective of the merits of the debate, however, the promulgation of the Labour Relations Act 66 of 1995 ended the distinction between persons employed in the public service and those employed in the private sector by bringing all employees, with three exceptions, under the ambit of a single piece of legislation. The exceptions for purposes of national security concern soldiers and spies – members of the National Defence Force, the National Intelligence Agency and the South African Secret Service are excluded from the application of the Labour Relations Act and other relevant legislation. The Constitution as the Supreme Statutory Law in South Africa The Constitution (Act 108 of 1996) has had far reaching consequences for all areas of law because, as the supreme law of the land, the Bill of Rights entrenches fundamental rights for citizens. Provision is made for the protection of these rights by permitting citizens to challenge legislation or actions by the State or others, which infringe those rights. The Bill of Rights in Chapter 2 of the Constitution provides several provisions relevant to the employer-employee relationship, such as protection against forced labour, the prohibition of exploitation of child labour, the prohibition of unfair discrimination, promotion of the right to pursue a livelihood and the right to safe working conditions. The most important section relating to labour relations is section 23, which provides that everyone has the right to fair labour practices. Thus both employees and prospective employees, such as job applicants, have a constitutional right to fair labour practices. The State as employer has to recognise and protect these employment rights for all persons employed by the State. The State includes central as well as provincial authorities. Specific Labour Legislation In accordance with the rights entrenched in the Constitution, other more specific pieces of legislation or statutes have been enacted to spell out the legal rights and duties of employees and employers in respect of the employment relationship. These statutes specifically cover the State, as employer. These statues include the following: o The Basic Conditions of Employment Act (BCEA) o The Employment Equity Act (EEA) o The Skills Development Act (SDA) o Unemployment Insurance Act (UIA) o The Labour Relations Act (LRA) The Labour Relations Act 66 of 1995 (as amended) The purpose of the LRA is to advance economic development, social justice, labour peace and the democratisation of the workplace by promoting collective bargaining, employee participation and the effective resolution of labour disputes. The LRA created the machinery for statutory dispute resolution – the CCMA, bargaining councils, the Labour Court and Labour Appeal Court. CCMA commissioners and council panellists are appointed on a full or part-time basis to conduct dispute resolution by means, primarily, of conciliation and arbitration of labour disputes. The LRA has codified the law developed over more than a decade in the erstwhile Industrial Court to govern alleged unfair dismissal and labour practice disputes. Important sections of the LRA Section 185 - the LRA echo’s the constitutional imperative by reinforcing the right of every employee not to be unfairly dismissed and not to be subjected to unfair labour practices. Section 186 – explains the different meaning to be attributed to the term “dismissal” and “unfair labour practice”. Section 187 – provides that dismissal under certain identified circumstances will be automatically unfair. In other words, once such a dismissal is proved, the employer will not be able to justify the dismissal on any grounds. Section 188 – alerts employer’s to the fact that dismissals, which are not automatically unfair, will still be regarded as unf air unless the employer can prove that the dismissal was both substantively and procedurally fair. The LRA places the onus or burden of proof on the employer. A dismissal will be substantively unfair (i.e. the reason for dismissal will be considered unfair) if the employer cannot prove that the dismissal was based on a fair reason related to the employee’s conduct, capacity or the employer’s operational requirements. A dismissal will be procedurally unfair unless the employer can prove that the dismissal was effected according to a fair procedure. Employers are provided with more detailed guidance on substantive and procedural fairness by a reference in the section to Schedule 8 of the LRA. Section 191 – provides employees with the applicable avenues, time limits and regulations should they elect to challenge a dismissal or an unfair labour practice using the statutory machinery created for labour dispute resolution. Section 192 – provides that in statutory dismissal dispute resolution, the employee bears the onus or burden to prove the dismissal and the employer, thereafter, bears the onus to prove that the dismissal was substantively and procedurally fair. Schedule 8 of the LRA - Code of Good Practice: Dismissal The LRA provides employers with clear guidelines in Schedule 8 of how to manage discipline (misconduct) and incapacity (poor performance, illness or injury) in the workplace. Schedule 8 forms the most important statutory framework within which employers can ensure fair disciplinary procedures including dismissal of an employee. Employers need to familiarise themselves with the guidelines set out in Schedule 8 and to develop disciplinary codes and procedures that align with the Schedule. We will now look at the most important guidelines in Schedule 8. There are 11 Articles in the Schedule. 1. Introduction The Code of Good Practice (Code) informs us that it is of necessity, general in nature, and deviation from its guidelines may be justified in the unique circumstances of each particular case. The Code is not a substitute for an employer’s own disciplinary code and the guidelines are always subservient to different guidelines provided in collective agreements. The Code’s purpose is to protect employees from unfair arbitrary action by employers and to protect an employer’s right to expect satisfactory conduct and performance from its employees so as to run a business enterprise efficiently and effectively. 2. Fair reasons for dismissal The Code reiterates that a dismissal will be automatically unfair if it occurs for one of the reasons listed in s187 of the LRA and that it will otherwise be unfair unless it is for a substantively fair reason related to the employee’s conduct, capacity or the employer’s operational requirements and effected by means of a fair procedure. 3. Disciplinary measures short of dismissal Here the Code provides employers with guidance on what is required in the design and implementation of a fair Disciplinary Code and Procedure. It is incumbent on all employers to develop and communicate rules, policies or standards of conduct in the workplace to their employees, as well as the penalties or sanction likely to be imposed for breach of the rules. The content and level of formality of such rules is dependant on the nature and size of each employer. Disciplinary Codes and Procedures should focus on corrective or progressive discipline in the workplace. A system of graduated disciplinary measures, such as counselling or warnings should be adopted to correct unacceptable employee conduct. These measures may be informal or formal depending on the nature and seriousness of the employee’s transgression. Repeated misconduct can be visited with a final warning. Dismissal as a penalty for misconduct should be reserved for the most serious offences or repetition of misconduct while a final warning is applicable. It is generally inappropriate to dismiss an employee for a first offence unless the misconduct is so serious it renders the continuation of employment intolerable. The code provides examples of such serious misconduct including, gross dishonesty, wilful damage to the employer’s property, wilful endangering the safety of others, physical assault and gross insubordination. Before imposing dismissal as a penalty for serious misconduct or repeated offences, the employer should consider the personal circumstances of the employee, length of service and disciplinary record, the nature of the job and the circumstances of the infringement itself. The penalty of dismissal must be applied consistently, in the sense that past offenders have also been dismissed and that joint offenders receive the same penalty. 4. Fair procedure The Code has set out guidelines for a fair procedure in effecting a dismissal. There ought to be an investigation into the alleged offence, and although a formal enquiry need not be held, the employee must be given an opportunity to state his case. For this to be fair, the employee must know and understand the charges against him, must have reasonable time to prepare, must be allowed assistance of a trade union representative or co-employee and the employer should communicate its decision to the employee, preferably in writing, with brief reasons for the dismissal. If a trade union representative, such as a shop steward, is to be disciplined, the employer must notify and consult with the trade union. Any employee who is dismissed should be advised of his or her rights to refer a dispute to the CCMA or a council. An employer may only dispense with these procedural guidelines in exceptional circumstances. 5. Disciplinary records Employers should keep proper records on disciplinary matters, penalties and actions taken for each employee. 6. Dismissal and industrial action Provides guidelines for dismissal arising from strike and lockout activity. 7. Guidelines in cases of dismissal for misconduct This is the most important Article of the Code in prescribing the detailed requirements for substantive fairness (i.e. fair reason) in a dismissal for misconduct. A person considering the fairness of a dismissal for misconduct must consider the following: (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. 8. Probation The 2002 amendments to the LRA have developed a much more detailed set of guidelines around the hiring, managing and dismissal of probationary employees. 9. Guidelines in dismissal for poor work performance Employers frequently have difficulty in distinguishing acts of misconduct from poor work performance. Although a very thin dividing line often blurs the distinction, the distinction is important because the Code provides different procedures in dealing with misconduct as opposed to incapacity. It should be remembered that an employee who “won’t” perform satisfactorily is guilty of misconduct and should be disciplined, whereas an employee who “can’t” perform satisfactorily is “guilty” of incapacity and must be “performance managed” rather than disciplined. The requirements outlined for a substantively fair dismissal resulting from incapacity in the sense of poor performance is to establish the following: (a) Did the employee fail to meet the required performance standard; and (b) If the employee did not meet the required performance standard, whether or not - (i) the employee was aware or could reasonably be expected to be aware of the required performance standard; (ii) the employee was given a fair opportunity to meet the required performance standard; and (iii) dismissal was an appropriate sanction for not meeting the required performance standard. 10. Incapacity: Ill health or injury This article sets out the requirements for managing incapacity res ulting from an employee’s ill health or injury. Again employers need to be alert to the fact that some types of misconduct, such as, being under the influence of alcohol or drugs while on duty, sleeping on duty, late coming or excessive absenteeism may have a basis in ill health, alcoholism or drug addition and the offence may have to be managed in terms of the incapacity guidelines rather than the misconduct guidelines. 11. Guidelines in cases of dismissal arising from ill health or injury This article provides guidance on the circumstances under which dismissal would be fair. Public Service Legislation & Standards The Public Service Act governs the appointment and employment of the vast majority of public servants. Other pieces of sectoral legislation have been promulgated to regulate the employment of certain specific categories of public service employees, such as educators and the police. Bargaining Council Constitutions Likewise, most employees in the public service fall within the jurisdiction of the Public Service Co-ordinating Bargaining Council (PSCBC) and their employment is subject to the Constitution of the PSCBC and ancillary Codes of Conduct, rules and agreements. There are separate sectoral bargaining councils for Education and Safety and Security, having their own constitutions, rules and regulations Council Collective Agreements Various collective agreements within the Public Service Co-ordinating Bargaining Council have obtained the status of subordinate legislation as Resolutions. The more important Resolutions impacting on the employment relationship will be fully covered below. WORKPLACE DISCIPLINE No State Department or governmental authority, irrespective of its size, can succeed if it cannot manage discipline in the workplace. All State employers need to have rules, policies or standards of conduct in place to provide employees with a framework within which they must conduct themselves and behave at work or face disciplinary action. In a perfect world, all employers will have a clear and fair written disciplinary code setting out the workplace rules and the potential penalties for breaking those rules. This code should ideally not be unilaterally drawn up and imposed by the State as employer but should arise out of joint consultation and consensus-seeking between the employer and the employees, usually represented by a trade union or other elected representatives. Furthermore, the code should reflect the statutory guidelines for managing misconduct in the workplace. Employers have a right and a duty to maintain discipline in the workplace. Employees provide their labour or services in return for remuneration. THE PUBLIC SERVICE DISCIPLINARY CODE 1. Purpose & Principles of the Code The purpose of the Code is to promote mutual respect between employees and between employees and employers. The Code is designed to avert and correct unacceptable conduct. The Code is designed to ensure that managers and employees have easy access to the Code and share a common understanding of misconduct and discipline. The Code’s purpose is to prevent arbitrary or discriminatory actions by managers toward employees. Discipline is not punitive but corrective. It is designed to correct unacceptable conduct not to punish wrongdoers. See 2. Principles, Item 2. Discipline must be applied in a prompt, fair, consistent and progressive manner. Discipline is a management function. Regulation 2 of 1999 requires that any Disciplinary Code & Procedure must be in writing. If an employee commits misconduct that is also a criminal offence, the criminal procedure and the disciplinary procedure continue as two separate and distinct procedures. The one does not impact on the other. The Code and Procedures are guidelines and may be departed from in appropriate circumstances. As far as possible, disciplinary procedures shall take place at the workplace and be understandable to all employees. Public servants have a right to appeal against a disciplinary sanction, which they regard as unfair. Resolution 2 of 1999 (as amended) only applies to employers and employees falling within the registered scope of the Public Service Co- ordinating Bargaining Council. Resolution 2 of 1999 incorporates the Code of Good Practice in Schedule 8 of the LRA, which, as far as it relates to discipline, constitutes part of Resolution 2 of 1999. The list of (mis)conduct in Annexure A is not exhaustive. Management may discipline an employee for conduct not mentioned in Annexure A, if the employee knew or ought to have known that the conduct was unacceptable or subject to disciplinary action. To ensure uniformity of disciplinary procedures across the public service, a disciplinary code concluded by a sectoral council must be approved by the PSCBC. In deciding an appropriate penalty for misconduct, managers must have regard to, among other things, the actual or potential impact of the misconduct on the work of the public service, the employee’s co- workers and the public. The nature of an employee’s work and responsibilities must be taken into account in deciding how serious the misconduct is that the employee committed. Disciplinary proceedings do not replace or seek to imitate court proceedings – see 2. Principles, Item 2.7. 2. Offences & Sanctions Annexure A sets out the types of conduct which constitute disciplinary offences. The list is not exhaustive, however, and offences may arise out of breaches of employment contracts or a Code of Conduct applicable to the employee. The Code in Resolution 2 (1999) and Resolution 1 (2003) has both informal as well as formal sanctions, which can be imposed on employees for misconduct. Informal discipline is often judged to be more effective than formal measures. Informal discipline, such as corrective counselling, reprimands and verbal warnings should, however, be recorded in case the employee’s conduct does not improve and more formal measures need to be applied. Some sort of enquiry into the alleged misconduct should precede formal disciplinary sanctions short of dismissal. Unfair disciplinary sanctions may be challenged as unfair labour practices and employers should note the legal restrictions on certain sanctions – such as unpaid suspension without the employee’s written agreement would be contrary to section 23 of the BCEA. Dismissal is not usually appropriate for a first offence unless the offence is very serious. Dismissal should be reserved for instances of serious misconduct or repeated misconduct, where less severe sanctions have not corrected the misconduct. General Warnings or policy statements State employers often issue general warnings or policy statements to alert employees that the employer intends taking action against certain forms of misconduct. For example, if it comes to management’s attention that some employees have inappropriate or pornographic pictures on their office walls, which may be offensive, it may warn employees to remove such material or face disciplinary action. This is not a disciplinary warning but communication of a rule. 3. Procedures: Disciplinary Actions (a) Informal discipline Corrective Counselling represents the first stage of disciplinary action – informally given to individual employees for specific acts of less serious misconduct, such as late-coming, poor time keeping, inappropriate dress, using bad language, etc. The manager must alert the employee to the misconduct, permit the employee to provide an explanation and try to ascertain the reason for the misconduct. The manager should then get the employee to agree on a plan of action to rectify the problem, take steps to implement the plan and monitor compliance by the employee. Verbal warnings are “friendly” reminders that if the employee continues with the misconduct, more serious disciplinary action will follow. The purpose of the warning is to remind the employee of the rule and to correct, not punish, the employee. Although verbal, the employer should keep a proper record of the warning for future reference. (b) Formal discipline (i) Written warnings Written warnings are more formal than a verbal warning. Contrary to popular belief, there are no laws or statutes that prescribe the number of written warnings that must be imposed before an employee is dismissed. By putting the warning in writing, using the format in Annexure B, the employer has proof that it was given. o It is appropriate for the employee to acknowledge the warning by signing for receipt of it, which does not mean an acknowledgement of guilt. If the employee refuses to sign, the warning is still valid and the manager must ensure a witness is present to sign confirming that the warning was given but that the employee refused to sign for it. o Before imposing a written warning, the employer should hold an enquiry or, at least, give the employee an opportunity to explain or defend the misconduct, be represented or assisted by a co-employee or shop steward, question his accuser and call witnesses, if necessary. o Written warnings should be recorded in the employee’s personal record and are valid for 6 months. Once a written warning has expired, it is n o longer relevant where the employee commits the same or similar offence and must be removed from the employee’s personal file and destroyed. o A written warning for abuse of the company’s fax machine would not normally be relevant if the employee is disciplined for late-coming within the time period of the first warning, except to indicate a general disregard for the employer’s rules. o The employee can challenge a written warning by referring an unfair labour practice dispute to the appropriate bargaining council. (ii) Final Written Warnings (FWW) o This is the last written warning the employer gives to the employee to correct persistent, repeated misconduct or to correct more serious misconduct, before the employee may be dismissed for misconduct. o It should not be issued lightly or prematurely. Managers who issue such warnings and then relent, if the misconduct continues by issuing another Final Written Warning, instead of dismissal, lose credibility. Employees will suspect that a Final Written Warning carries little authority and discipline becomes less effective. o A FWW, using the format in Annexure C, must be given to the employee who should sign for receipt of the FWW, but if the employee refuses to sign, a witness must sign confirming that the warning was given to the employee. o Although a formal enquiry need not necessarily be held before imposing a FWW, it is essential that the employee understands the nature of the alleged misconduct and is given an opportunity to defend himself. o A Final Written Warning should be for a specific offence and not general. Some employer’s impose a type of FWW that warns the employee that should they make themselves guilty of any other (unrelated) misconduct, they potentially face dismissal. Such general FWW’s are discouraged and may not stand up to scrutiny at the council. o FWW’s remain in force for six months. Once they expire, the employee cannot be dismissed for committing the same offence. On its expiry, the FWW must be removed from the employee’s personal file and destroyed. o If an employee is on a current FWW for an offence and commits the same or very similar offence again, the employer cannot simply dismiss the employee but must hold a proper enquiry first to determine the employee’s guilt and the appropriateness of dismissal as a sanction. o FWW’s can be challenged as an unfair labour practice. 3. Serious Misconduct Manager must conduct a formal disciplinary enquiry. The Resolution only mentions the following possible sanctions for serious misconduct. (a) Suspension o Suspension refers to the situation where an employee is not permitted to be at the workplace for a stipulated period of time and may be paid suspension or unpaid suspension. o Employers should distinguish between precautionary suspension (or transfer) as an operational measure and suspension as a punitive measure. o A precautionary suspension (or transfer) may be validly used when an allegation of alleged misconduct has been raised and an investigation needs to be conducted. If the accused employee remains at the workplace, it may hamper the investigation; intimidate potential witnesses or permit tampering with incriminating evidence. o If the employer suspends the employee for the duration of the investigation until the disciplinary enquiry is held the suspension must be with pay and a disciplinary enquiry must be held within 1 month of the suspension. o It is important, however, that an employee suspended, pending an enquiry, is permitted access to his union or other representative, witnesses and relevant documentary or other evidence so that the employee can prepare a defence. o A precautionary suspension may also be appropriate where tensions are running high and the employee’s presence at the workplace could aggravate a sensitive situation. o Punitive Suspension i.e. where it is used as a sanction or punishment is permissible for serious misconduct but ought to be suspension with pay because unpaid suspension is contrary to section 24 of the Basic Conditions of Employment Act unless the employee consents in writing. o If an employee, who is found guilty of misconduct and is facing dismissal, agrees to accept unpaid suspension for a period of time rather than being dismissed, the employer must capture this in writing and the employee must sign acceptance of the sanction. o Managers should be encouraged to consider unpaid suspension for serious misconduct in cases where dismissal may not be appropriate for one or other reason. (b) Demotion o To be demoted means to be reduced to a lower rank or status (with or without a reduction in remuneration) and involves a variation or amendment to the employee’s contract of employment. o At common law and under the BCEA a demotion raises legal difficulties because an employer may not unilaterally alter the terms of an employee’s contract of employment and may not reduce the employee’s wage or status without the employee’s agreement. o Like punitive suspension, it may be used as an alternative sanction to dismissal in cases of serious misconduct but with the written consent of the employee. o It is important that demotion or suspension is a reasonable alternative to dismissal and the employee is not forced into making an unfair election. o Demotion may also be appropriate where an employee is promoted or placed at a level where they are unable to perform to required standards but again the employee must consent to the demotion. o Managers are encouraged to consider demotion for serious misconduct in cases where dismissal may not be appropriate for one or other reason. (c) Dismissal o This is the most severe sanction and should only be considered in cases of very serious misconduct or repeated misconduct where less severe penalties have not had the desired effect of correcting the employee’s misconduct. o Dismissal in employment law is the equivalent of the death sentence as a criminal penalty and should not be imposed lightly or arbitrarily. o Dismissal may be on notice or may be summary, i.e. where no notice is given or no payment in lieu of notice made. o Fair dismissal must be for a fair reason related to proven misconduct and effected by means of a fair procedure. o A proper disciplinary enquiry must be held prior to imposing dismissal as a sanction. o Dismissal may be challenged as procedurally and/or substantively unfair at a bargaining council. NOTE: o An employer must be able to justify a fair reason for imposing any disciplinary sanction short of dismissal and must follow a fair procedure before imposing the sanction. o An employee is entitled to take any form of disciplinary sanction to the CCMA or a bargaining council as an alleged unfair labour practice (ULP). o The employer bears the onus or burden of proof in establishing on a balance of probability that an employee is guilty of the offence. o If an employee is demoted or subjected to other disciplinary sanctions short of dismissal and as a result resigns, the employee may refer a dispute alleging constructive dismissal – i.e. alleging that the employer made continued employment intolerable leaving the employee with no other option but to resign. PROCEDURALLY FAIR DISMISSAL State employers and HR Managers, in particular, need to know the statutory requirements for dismissing an employee by means of a fair procedure. If managers have a good reason to dismiss an employee for serious or repeated misconduct, they can nevertheless, be found to have dismissed the employee unfairly because they did not follow a fair procedure in effecting the dismissal. If the dismissal is only unfair because the employer did not follow a fair procedure the employer may be ordered at arbitration to pay compensation to the dismissed employee and to pay an arbitration fee to a bargaining council,. Pre-enquiry procedural fairness checklist: Conduct investigation into alleged misconduct The employer must ensure that alleged misconduct, i.e. breaches of Schedule A or other alleged conduct constituting grounds for disciplinary action are conducted. It may be necessary and appropriate for the alleged offender to be suspended (with pay) during the period of the investigation if the accused employee may be in a position to compromise the investigation. It is during the investigation that oral evidence is ascertained, i.e. by taking statements from the alleged offender and all other relevant witnesses, securing documentary evidence and any other relevant real evidence. The purpose of the investigation is to discover whether the alleged misconduct took place, the seriousness or otherwise of the alleged misconduct and what proof of the alleged misconduct exists. Appoint initiator Where the investigation reveals that on the face of it, serious misconduct has been committed, the employer should initiate disciplinary steps against the alleged offender. The employer appoints an employee, usually the manager or direct supervisor of the alleged offender, to initiate disciplinary proceedings. The initiator may also, but not necessarily, have conducted the initial investigation. Drawing up the charges The initiator, using Schedule A, should draw up the charges in as specific terms as possible, identifying the nature of the misconduct and, where appropriate, the date, time and place of the alleged offence/s. It is important that the charges are carefully drawn up so that the accused employee is left in no doubt as to the nature of the misconduct which he has allegedly committed so that he can defend himself against the charges. Notifying the accused employee Notification serves a dual purpose – it sets out the charges brought against the accused employee and it provides the accused employee with the date, time and venue of the disciplinary enquiry as well the employee rights which the accused employee is entitled to exercise at the enquiry. Note: the employer must permit the accused employee at least five working days notice of the enquiry and is obliged to hold the enquiry within ten working days of having notified the accused employee of the charges and disciplinary enquiry. For example: The alleged misconduct takes place on 20 March. An investigation is conducted and completed by Friday 30 March. The charges are drawn up on Monday, 2 April and notice of a disciplinary enquiry is prepared. The notice is served on the alleged offender on Tuesday, 3 April. The date scheduled for the disciplinary enquiry must be any date between Wednesday, 10 April (the minimum of 5 working days’ notice to the alleged offender) and Wednesday, 17 April (to be within the required 10 working days of serving the notice). Notification must inform the accused employee of his employee rights: to defend himself, to the services of an interpreter, to be represented at the enquiry, to question the employer’s witnesses and to bring witnesses in his defence. Representation In accordance with Schedule 8 of the LRA, the accused employee is entitled to be represented by a fellow employee (from the same department or institution, but excluding a full-time shop steward) or a representative of a recognised trade union (the LRA does not speak of a recognised trade union but of a registered trade union; in this context recognised trade union means a union admitted to the PSCBC or a union enjoying organisational rights with respect to that department or institution only). Neither party is entitled to legal representation unless the accused employee is a legal practitioner or the employee appointed by the employer as initiator and who is the direct supervisor of the accused employee, is a legal practitioner. (A legal practitioner is a person admitted to practice as an attorney or advocate in SA). The parties may be legally represented if the disciplinary enquiry has by agreement been converted into a pre-dismissal arbitration in terms of s188A of the LRA and both parties consent to legal representation. Appointing the chair of the enquiry The employee appointed to chair the enquiry must be a neutral employee with preferably no prior knowledge or involvement with the alleged commission of the offence/s. The chair must be selected from a grade higher than the grade of the initiator, i.e. the employee appointed by the employer as its representative at the enquiry. Conducting a fair disciplinary enquiry Attendance of the accused employee The employer must do whatever is reasonably possible to ensure the accused employee’s attendance at the enquiry. It is necessary for procedural fairness that the accused employee has an opportunity to face his accusers, question them, state a case in his defence, call his own witnesses and participate fully in the enquiry before a determination is made. If the accused employee has been properly notified and without a valid reason elects not to attend the enquiry, the chair may postpone the enquiry or, where necessary, the enquiry may proceed in the employee’s absence. Equally, if the accused employee is disruptive, rude or threatening during the enquiry, the chair can have him removed and continue in his absence. The Initiator – employer’s representative The employee appointed by the employer to initiate the disciplinary action on behalf of the employer is responsible for presenting the case against the accused employee and must ensure that the evidence is presented to the chair in an ordered and logical way. The initiator should: Make an opening statement to provide the chair with a brief overview of the employer’s case Place relevant documents and other real evidence before the chair. Documents should be collated into a bundle in chronological order and paginated for easy reference Call witnesses in a logical sequence and question them so that their oral evidence is presented clearly to the chair Question the accused employee and any witnesses brought by the accused employee Present a closing statement or argument, pointing out the probabilities of the employer’s case and any inconsistencies, admissions or discrepancies in the accused employee’s case Present aggravating circumstances Suggest an appropriate finding and penalty. The chairperson The chair is tasked with conducting the disciplinary enquiry in a fair and unbiased manner. The chair must keep a record of the notice of the enquiry and the enquiry proceedings. This is generally done by longhand but in certain cases the chair may be assisted by a minute taker and/or make a mechanical recording of the proceedings. The chair should: Welcome the parties and permit every one to introduce themselves and explain their role at the enquiry. The chair is responsible for ensuring that both representatives have the required status to appear and represent the respective parties Check that the accused employee has been advised of his rights and been permitted to exercise them Explain the enquiry procedure to the accused employee and allow clarification Read the charge/s to the accused employee and ask him to plead – to admit or deny guilt Permit the initiator and the accused employee or his representative to make brief opening statements Narrow the issues by establishing what is agreed and what is in dispute Accept any documentary or other evidence and establish whether the evidence is in dispute Because the employer bears the obligation to prove, on a balance of probability, that the accused employee is guilty of the offence, the initiator leads evidence by calling witnesses first Allow each witness to give their evidence-in-chief and be cross- questioned by the employee or his representative until all the employer’s witnesses have been questioned and all the documentary or other evidence presented Permit the accused employee and his witnesses to give evidence and be cross-questioned Give both the initiator and employee or his representative an opportunity to make closing statements or arguments The chair may ask questions of clarification of any person at any time during the enquiry NB: Chair makes a decision on whether the accused employee is guilty of the charge/s and communicates the outcome to the initiator and the accused employee and his representative. If the chair finds the accused employee not guilty the chair informs the parties and terminates the enquiry. Completion of enquiry by chair where employee found guilty: The chair must: Allow the initiator to present argument regarding the appropriate sanction, including aggravating factors or circumstances which justify a penalty of dismissal Allow the accused employee or his representative, to present argument for a less harsh penalty by presenting mitigating factors or circumstances Indicate to all concerned when they can expect the chairperson’s final decision on sanction and the manner in which it will be communicated. Note that the chair is required to communicate the final outcome within five working days after the conclusion of the disciplinary enquiry The chair must record the finding and sanction in writing, preferably with brief reasons and make it available to all concerned. The finding and sanction must be recorded on the employee’s personal file. If the sanction is dismissal or something short of dismissal, such as demotion, suspension, a written warning, etc., the chair must notify the accused employee or his representative of the right to appeal against the finding of guilt and/or the sanction At this point the chair becomes functus officio, i.e. has no further legal or other role to play. Note: If the employee lodges an appeal against the finding and/or the sanction, the sanction imposed by the chair may not be implemented pending the outcome of the appeal The appeal The employee may appeal by completing Annexure E and submitting it within five working days to his executing authority or to his manager who will forward the appeal to the appeal authority The appeal authority is either the employee’s executive authority or another person appointed by the executing authority who was uninvolved in the disciplinary enquiry and is in a grade higher than the chair of the original enquiry The appeal authority has a discretion to either decide the appeal on the basis of the written record and written grounds of appeal or by way of conducting an oral hearing but must finalise the appeal within 30 days The appeal authority may: o Uphold the appeal – i.e. find that the chair’s finding of guilt and/or the sanction imposed was incorrect; or o Reduce the sanction to a lesser penalty (i.e. confirm the guilty finding but find the penalty too harsh); or o Confirm the outcome, i.e. confirm the finding of guilt and the sanction imposed Note: o Dismissal may only take effect when the appeal outcome is communicated. If an outcome is not forthcoming within the 30 day period, any precautionary suspension is lifted automatically and the employee resumes duties while awaiting the appeal outcome o The employee is entitled to refer a dispute about a dismissal (or any lesser sanction) to the relevant bargaining council for conciliation and thereafter, arbitration or Labour Court adjudication SUBSTANTIVELY FAIR DISMISSAL A dismissal must be both procedurally and substantively fair. Substantive fairness relates to the reason for dismissal, which in terms of s188 of the LRA may only be one of three possible reasons: A reason related to the conduct of the employee or a reason related to the capacity of the employee or a reason based on the employer’s operational requirements. Dismissal for any other reason would be unfair and may even be automatically unfair. Read Schedule 8 – The Code of Good Practice: Dismissal Article 3(4), (5) & (6) sets out general principles regarding dismissal for misconduct. Article 7 sets out the Guidelines for substantive fairness in cases of dismissal for misconduct. General principles o Discipline should be corrective measures taken by the employer in a progressive way, with less severe penalties for minor offences. Dismissal is not normally appropriate for the commission of a first offence unless the offence is so serious that it makes continued employment intolerable or if it is a case of repeated misconduct despite a final warning. o Before imposing the penalty of dismissal the employer should consider the gravity or seriousness of the offence, the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. o The employer should apply the penalty of dismissal consistently, i.e. if several employees are found guilty of the same serious offence, the employer should not dismiss one and not others unless there are good reasons to make a distinction. Equally, if in the past the employer has never sanctioned certain misconduct with dismissal, the employer should not now dismiss an employee for that misconduct unless the employer has communicated its intention to take more severe action against future offenders. Specific guidelines for substantive fairness Article 7 provides that a person considering the fairness of a dismissal for misconduct must consider the following: (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. In other words, to meet the requirement of substantive fairness the employer must prove: The 5-point test the employer had a rule or policy that the employee breached the rule or policy was valid (fair) and reasonable the employee knew the rule or ought to have known the rule the employer treats all employees breaking that rule in the same way, i.e. imposes the same sanction in the circumstances, dismissal was a suitable sanction. Interpretation of the 5 point substantive fairness test 1. The employer is responsible for establishing on a balance of probability that the employee contravened a rule or standard of the workplace. The term balance of probability does not mean beyond reasonable doubt, which is the standard of proof required in criminal cases when the state is required to establish the guilt of a person charged with a criminal offence. Balance of probability means that of two versions, one version is more likely to be true or correct. It also means that where there is no direct evidence that the employee committed the offence but there is circumstantial evidence and that evidence leads to only one probable conclusion, that version is sufficient to establish guilt. 2. The employer must demonstrate that there is a good reason or sound commercial rationale for having the rule; the rule must be based on a sound economic principle, e.g. rule against driving a State vehicle without permission – breach of rule leads to loss of insurance cover, reduces value of State asset, etc. 3. The employer needs to keep a record of how, when and where the rule was communicated to the employee. The Schedule 8 Code accepts that some rules are so well known that all employees can be expected to know them, such as theft from the employer, assault of a co- employee, etc. 4. The employer must apply the rule consistently. In other words, the employer must impose the same or similar sanction of dismissal to all its employees. In the past the employer must have dismissed employees for committing the same or very similar offence and if two or more employees committed an offence jointly and are equally guilty, the employer should dismiss all of them unless there are very good reasons to make a distinction between the employees’ responsibility or involvement in the commission of the offence. 5. In deciding if dismissal is an appropriate sanction, the employer (chairperson of the enquiry) must consider the employee’s circumstances, including the following: o The gravity or seriousness of the offence o The circumstances surrounding the commission of the offence o The nature of the job – this takes cognisance of the nature and environment of the employer’s business – if a clerk falls asleep at his desk on Saturday morning from a late Friday night out, it is less serious than if the Sister in charge of patients in the Intensive Care Ward falls asleep during her night shift. o Mitigating and aggravating circumstances o The employee’s personal circumstances, including, length of service, previous disciplinary record, responsibilities for dependents, debts, employee’s age, etc. LEARNINGS FROM CASE LAW Importance of audi alteram partem rule State employees have always been able to challenge administrative decisions made without consultation and which have, or may have, an adverse effect on the employees. Our highest court has repeatedly reminded the state that as an employer it cannot impose unilateral decisions on state employees without taking cognisance of the rules of natural justice. Before adverse decisions such as transfer or demotion are implemented, the state is obliged to “hear the other side” or follow the rule of audi alteram partem: Administrator, Transvaal & others v Traub & others 1999 (4) SA 731 (A) Administrator, Transvaal & others v Zenile & others 1999 (2) SA 21 (A) Fraser v Children’s Court, Pretoria North & others 1997 (2 SA 218 (T) In the case of Nombungu & others v Transkei High Court (2004) 25 ILJ 1403 (TK) former Transkei police offices who had been absorbed into the national integrated South African police services had been promoted in terms of the Interim Promotion Policy. Despite occupying higher ranks, the police offices in question were not remunerated in line with their promoted ranks. An unsuccessful grievance found the police officers being demoted as a “salary correction” was effected by their superiors. Review in court found their demotion to have been unfair. On appeal by the Police Services, the court emphasised the importance of the audi alteram partem principle and castigated the Police Services for its high handed action but quashed the unfair demotions on the basis of a technical point that the National Commissioner of Police was not empowered to demote employees or reduce salaries. Even though imposing disciplinary sanctions may be theoretically distinguishable from making other administrative decisions, the principle of audi alteram partem remains pre-eminent in ensuring procedural fairness. The Public Service Disciplinary Code has deliberately incorporated the LRA’s Code of Good Practice as a yardstick by which to measure procedural fairness in addition to its own prescriptions of how to impose disciplinary sanctions fairly. In the private sector, two recent private arbitrations conducted under the auspices of TOKISO, confirm the need for employers to hold enquiries prior to dismissing employees whose conduct was treated as desertion. In both cases the absent employees were being held in police custody and were dismissed in their absence. The dismissals, although substantively justifiable, were found to be procedurally unfair because the employers ought to have conducted disciplinary enquiries on the employees’ eventual return in terms of the LRA: Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA) NUMSA obo Magadla and AMT Services (Pty) Ltd (2003) 24 ILJ 1764 (BCA) Desertion in the Public Service as an automatically dismissible offence is more complicated because Public Service legislation frequently operates alongside the LRA. In Hospersa & another v MEC for Health (2003) 24 ILJ 2320 (LC), the court tasked with reviewing an arbitration award, found itself confronted with two different legislative approaches to desertion. Section 17(5)(a)(i) of the Public Service Act provides that where an employee absents himself from duty without permission for one calendar month, the employee is deemed to be discharged for misconduct, thus negating the need to hold any sort of enquiry. This the court viewed as termination of employment by operation of the law rather than a dismissal in the normal sense of the word. The arbitrator had viewed the discharge as procedurally fair and provided no relief to the applicant. The Labour Court, however, concluded that the PSA section 17(5)(a) had to be interpreted purposefully because it was designed to bring finality in situations where an employee had absented himself and his whereabouts were unknown and there was uncertainty about whether or not the employee would ever report for duty in the future. In this case the absent employee’s whereabouts were not unknown. The employee had been seconded to the trade union in terms of a PSCBC Collective Agreement (Resolution 8 of 1998) two years earlier. There had been protracted communication and dispute about when the employee should return from the secondment. For this reason the court held that the employee had not deserted in the sense provided for in s17(5)(a) of the PSA and that his absence could not amount to a “deemed discharge”. The failure of the Health Department to bring charges against the employee in terms of the Public Service disciplinary code (including the prescriptions of procedural fairness in the LRA) and hold an enquiry made the dismissal procedurally unfair. In another case, Cassim v SA Police Service & others (2004) 25 ILJ 1424 (LC), the Labour Court used a technical loophole to reconcile the differing requirements of fairness in the LRA and BCEA with provisions of the South African Police Service Act (68 of 1995) and its associated Regulations. The Area Commissioner suspended an employee without pay as a disciplinary measure for misconduct. The employee challenged the sanction at the CCMA unsuccessfully because s15 of the South African Police Service Act provided for such suspension. On review, the award was set aside by the Labour Court because it found that the arbitrator had not appreciated that the Regulations govern the suspension and demotion of employees not the Act and that these regulations must be interpreted restrictively because they deprive an individual of his fundamental employment rights. Although the power to suspend an employee can be validly delegated and exercised the power to suspend emoluments cannot be delegated and was therefore invalid. The attempt to marry requirements of procedural fairness as set out in the LRA with differing prescriptions reached in collective agreements has led to peculiar compromises. In the case of Highveld District Council v CCMA & others (2003) 24 ILJ 517 (LAC) an engineer was dismissed for misconduct after the employer, the Council, following the LRA’s Code of Good Practice, held a procedurally fair disciplinary enquiry. The employee challenged the dismissal because the Council had failed to follow certain procedural requirements captured in the collective agreement. The CCMA arbitrator found that procedural fairness had been sufficiently complied with and pronounced the dismissal to have been procedurally fair. The Labour Court, in reviewing the arbitrator’s award, disagreed and found that because the Council had ignored certain minor procedural provisions, which were peremptory in the collective agreement the dismissal was procedurally unfair. The Council took the court’s decision on appeal to the Labour Appeal Court. The LAC held that although the provisions of the collective agreement were very important in determining procedural fairness, they were not in themselves determinative. The court stated that a failure to follow the provisions of the collective agreement to the letter does not necessarily mean that a dismissal is procedurally unfair. Equally, the court stated, that even if the Council had followed the prescriptions of the collective agreement conscientiously, it would not have guaranteed procedural fairness. The court fell back on the old compromise that procedural fairness must be judged in each case by a consideration of fairness based on all the circumstances and concluded that in the light of all the facts, the dismissal had been procedurally fair, thus confirming the arbitrator’s original award.
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