Introduction:
Do not let the dominos fall over on your company when you are disciplining an employee!
In South Africa, the Labour Relations Act (LRA) provides guidelines to ensure fair and just dismissals in the workplace. Schedule 8 of the LRA contains a Code of Good Practice for Dismissals that outlines the principles and procedures employers should follow when considering disciplinary action against an employee.
Item 7 of this code specifically addresses the application of a lesser sanction for misconduct. In this blog post, we will delve into the details of Item 7 and explore how employers can apply it to make informed decisions when determining whether to dismiss an employee or opt for a lesser sanction.
Understanding Item 7 of Schedule 8:
Item 7 of Schedule 8 emphasizes the importance of considering alternative measures to dismissal when dealing with employee misconduct.
It promotes the principle of progressive discipline, which encourages employers to impose disciplinary measures that are appropriate and proportional to the severity of the misconduct.
THE FOLLOWING QUESTIONS MUST BE ASKED BY AN EMPLOYER WHEN APPLYING ITEM 7:
- Was there a rule?
- Has the rule been breached, by the employee?
- Was the employee aware of the rule which was breached?
- Should the employee have reasonably aware of the breached rule?
- If so, what is the appropriate sanction?
- was the sanction imposed appropriate?
Applying Item 7 to Decide on a Lesser Sanction:
When faced with employee misconduct, employers should follow these key steps to apply Item 7 effectively and make a fair determination:
- Conduct a thorough investigation: Before deciding on any disciplinary action, employers must conduct a proper investigation into the alleged misconduct. This investigation should be unbiased, confidential, and at gathering all relevant facts and evidence. The evidence collected should provide a clear understanding of the nature and severity of the misconduct.
- Consider mitigating factors: When evaluating whether a lesser sanction is appropriate, employers should take into account any mitigating factors. These could include the employee’s length of service, previous disciplinary record, genuine remorse or apology, cooperation during the investigation, and the impact of the misconduct on the workplace or colleagues.
- Assess the seriousness of the misconduct: Employers must objectively assess the severity of the misconduct committed. Factors such as the impact on the business, breach of trust, violation of policies or procedures, and potential harm caused to individuals or the organization should be taken into consideration. This assessment will help determine whether a lesser sanction is proportionate to the offense.
- Review consistency in disciplinary actions: Consistency in applying disciplinary measures is crucial. Employers should assess whether similar offenses in the past have resulted in dismissal or lesser sanctions. A lack of consistency can undermine the fairness of the process. However, each case should be evaluated on its own merits, considering the unique circumstances involved.
- Consultation and representation: The employee should be given an opportunity to state their case, explain their actions, and provide any relevant information or evidence in their defense. It is important to allow the employee to be accompanied by a representative or trade union official during these discussions.
- Consider alternatives to dismissal: Before deciding on dismissal, employers should explore alternatives to termination. This may involve imposing a lesser sanction, such as a written warning, final written warning, suspension without pay, demotion, or additional training. These alternatives aim to correct the employee’s behavior and provide an opportunity for improvement.
- Keep detailed records: Throughout the disciplinary process, employers should maintain comprehensive records of all relevant documentation, including the investigation report, correspondence, minutes of meetings, and any disciplinary actions taken. These records serve as evidence of a fair and lawful process, should any dispute or legal challenge arise in the future.
Conclusion:
Item 7 of Schedule 8 of the LRA’s Code of Good Practice for Dismissals highlights the importance of considering alternative measures to dismissal when addressing employee misconduct.
By following the steps outlined above, employers can ensure that they apply Item 7 effectively, promoting fairness, consistency, and proportionality in their disciplinary decisions.
Striking a balance between discipline and corrective action fosters a harmonious work environment and allows employees the opportunity to rectify