If an employee fails to follow the rules/regulations or performance standards of the company, what are the disciplinary measures available for employers?
This is a question I recently received from a manager of a small company. And after answering him directly via E-Mail I thought that it might make an interesting topic for a blog article. So here we are. Of course, this might be a topic that interests mid to senior-level managers more than the average employee. However, I still think it is beneficial for all staff to know what disciplinary penalties may be imposed upon them for failing in their duties.
What Disciplinary measures are available for employers?
It is generally accepted that disciplinary penalties be applied in succession. By this, I mean that a lighter penalty should be applied for first offences and harsher penalties for repetitions of the same offence.
It is also important for both employers and employees to remember that the definition of unfair labour practice includes any disciplinary action short of dismissal. Therefore any of the disciplinary measures available for employers discussed below may be challenged and taken before the CCMA if the employee feels that the sanction was not justified.
General vs Specific warnings
Warnings may be general or specific.
General warnings are often used to inform employees about the rules and regulations of the employer. They may also be used to inform staff about any rules changes that have taken place for any reason. These warnings are addressed to the workforce as a whole, the idea being that no staff member may later claim they were unaware of a particular rule or unfairly treated.
Specific warnings are given to individual employees for a particular act of misconduct. The purpose of a specific warning is to;
- make the employee aware of the offending misconduct or poor performance
- remind them of the correct behaviour or standards required
- give the staff member an opportunity to improve
Specific warnings may be oral or written depending on the severity of the offence.
1) Oral warnings
Oral or verbal warnings are the lowest form of disciplinary action available to employers. They are used to let staff know that they have placed a foot out of place and a change is needed. In other words, an oral warning is purely corrective in nature.
Oral warnings are viewed as informal and therefore no formal procedure need be followed.
2) Written warnings
A written warning is more formal than an oral warning. The fact that the warning has been written down and documented can help an employer prove that a warning was given if the behaviour carries on.
Generally speaking, a written warning should be signed by both the employer and employee. Signing a warning is not an admission of guilt, simply recognition that the warning was issued. However, if an employee refuses to sign the warning does not lose its validity.
Because a written warning is a formal disciplinary procedure, an employee should be given an opportunity to state his or her case before a written warning is issued.
3) Final written warnings
A final written warning is the final warning an employee can expect before dismissal. It is essentially the very last chance an employer is giving an employee to correct their behaviour.
Final written warnings should not be issued lightly. An employer must remember that if a final written warning is issued, and the behaviour occurs again, even once, they will need to follow dismissal procedures. Failure to do so would undermine the validity of the entire disciplinary system in the organisation.
A final written warning will have an expiry date which may be determined by the employer. However, it is generally accepted that 6 months is an acceptable period.
4) Denial of privileges
Employers are always encouraged to seek alternatives to dismissal. In some cases are even encouraged to explore creative alternatives that could work in their organisation.
One such alternative could be the withholding of special privileges such as deprivation of discretionary bonuses, special leave or any privilege attached to long service the employee may be receiving.
Can an employer deduct from an employees salary? No, this is not allowed without the employees written consent. Therefore imposing fines as disciplinary measures would be considered unlawful.
Suspension can come in two forms.
Firstly, and most commonly it can be imposed pending the outcome of a disciplinary procedure. In this case, the employer feels that the actions of the staff member are such that allowing them to perform their duties would be to the detriment of the company. It type of suspension is not punitive in nature.
Secondly, suspension can be used as a form of disciplinary penalty. However, unless suspension without pay is agreed to in the employment contract the employer would still be obligated to pay the employees salary. This might be seen as an extra paid vacation by the other staff which will only encourage bad behaviour in the hopes of similar treatment.
Therefore, if an employer wishes to use suspension as a punitive method they should make the terms clear in the employment contract.
Under the BCEA demotion seems not to be a viable form of disciplinary action. The reason for this is that the employer is unilaterally changing the employees’ contract of employment which is generally unacceptable. However, the labour courts do view demotion as an acceptable alternative to dismissal, especially where it is provided for in the companies disciplinary code.
The termination of the contract of employment should be considered only as a final resort. In order for a dismissal to be considered fair, it must be both substantively correct and the correct procedure must be followed.
Where ever possible managers should try to view the disciplinary procedure as a corrective action rather than punitive. As mentioned earlier disciplinary penalties should be applied in succession, with lesser penalties being applied for first offences.
It is also very important for managers to remember that they need to be consistent in their application of disciplinary procedures. What is applied to one staff member automatically becomes the standard and it is fair for other staff to expect the same treatment.
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