In South Africa, employers are legally required to have a disciplinary code. This code sets out the standards of conduct expected of employees and the consequences for breaches of those standards. A well-drafted disciplinary code can help employers to:
- Create a fair and consistent workplace. By having clear rules and procedures, employers can ensure that all employees are treated fairly, regardless of their position or seniority. This can help to create a more harmonious and productive workplace.
- Prevent misconduct. When employees know what is expected of them, they are less likely to engage in misconduct. A well-publicised disciplinary code can act as a deterrent to bad behaviour.
- Resolve disputes quickly and efficiently. If an employee breaches the disciplinary code, the employer can follow a clear and transparent procedure to deal with the matter. This can help to avoid lengthy and costly litigation.
Having a disciplinary code is an integral part of managing a successful business. By taking the time to draft a fair and effective code, employers can help to create a more harmonious and productive workplace.
A disciplinary code comes into play whenever an employer wants to take disciplinary action against an employee. According to South African labour laws, disciplinary action must meet four requirements to be fair:
- There must be a rule;
- The employee must be aware of the rule;
- The rule must be reasonable; and
- The rule must be applied consistently.
Disciplinary codes address the first of these requirements in that they set the rules in the workplace. If an employer cannot prove the existence of a rule prohibiting a specific action of an employee, then he cannot take disciplinary action against that employee.
The code should also contain guidelines on the severity of each rule and the likely sanction that will result from breaking the rule. Sanctions include verbal warnings, written warnings, final written warnings and, for the more serious, the dismissal of the employee.
The Labour Relations Act (LRA) endorses the concept of progressive discipline. This means that warnings for less serious offences, like being late for work, may stack onto each other. A first offence will warrant a verbal warning, the second transgression of the same or similar offence will ‘progress’ to a written warning, and so forth.
Disciplinary codes are usually subdivided into broad categories to define what charges are considered ‘same or similar’ for the purposes of progressive discipline. Examples of these subcategories are ‘dishonesty & trust related offences’ and ‘attendance & time-related offences’.
Individual charges are then formulated under each subcategory. For example:
Attendance & time-related offences:
- Absent from work without good reason or leave.
- Reporting late for duty.
Dishonesty & trust related offences:
- Affecting false entries in attendance or other registers.
- Submitting false documentation, information or CV during application for employment.
Several basic charges should be included in every code, but businesses should also draft their code according to their unique business requirements.
The only limit on what rules may look like is the third requirement mentioned above, namely that the rule must be reasonable. According to the courts, any workplace rule that has a valid economic rationale for the business will be considered reasonable.
Disciplinary codes must always be used as guidelines and may never be applied rigidly. The facts and circumstances of each matter must be considered when deciding on the correct course of action. An excellent example of how this principle works is the so-called ‘zero tolerance’ policies that businesses regularly try to enforce. In terms of these policies, certain rule transgressions will always lead to the employee’s dismissal.
The courts have consistently held that ‘zero tolerance’ policies must first pass the reasonability test, in that they must have an economic rationale. Secondly, even with a valid ‘zero tolerance’ policy, the transgressing employees’ dismissal may still not be a foregone conclusion. The facts and circumstances of each matter must still be considered.
It’s an unfortunate fact that every business owner will have to face workplace misconduct at some point. A well-established and legally compliant disciplinary code is essential for effectively addressing workplace misconduct.
SEESA provides a full range of labour law consulting services. Our team of specialist labour law advisors can assist your business with its disciplinary processes and give you peace of mind.