Implementing disciplinary policies, codes of conduct, and procedures is not merely best practice – it's a legal necessity. These instruments form the foundation for ensuring procedural and substantive fairness in managing employee conduct and performance, as required by the Labour Relations Act 66 of 1995 ("LRA"). Employers who neglect to put these frameworks in place often exposes themselves to legal disputes, reputational damage, and workplace instability. The benefits of implementing such instruments are as follows:
1. Compliance with the LRA
Section 188 of the LRA stipulates that if an employer contemplates a dismissal of an employee, that the dismissal must be both substantively and procedurally fair. Substantive fairness relates to the reason for the dismissal, while procedural fairness refers to the process followed. Schedule 8 of the LRA provides the "Code of Good Practice: Dismissal", which provides guidelines on what constitutes a fair disciplinary process.
Having a clear disciplinary policy and procedure enables employers to align with these requirements and prove compliance if any dispute is referred to the CCMAand/or the Labour Court.
2. Ensuring Fairness and Consistency
Section 3 of Schedule 8 highlights the importance of consistent application of discipline across the workforce. Inconsistent or ad hoc disciplinary action can result in findings of unfair discrimination or procedural unfairness. A documented disciplinary code helps ensure that similar misconduct is treated similarly, thereby upholding the principle of equality and fairness in the workplace.
3. Providing Clarity and Preventing Misconduct
Employees are entitled to know what conduct is expected of them. A disciplinary policy sets out clear rules and consequences, helping to prevent misconduct and promote lawful workplace behaviour. It also assists employees in understanding their rights and responsibilities.
4. Minimising Legal Risk
In the absence of a clear policy, employers may face significant legal consequences. Unfair dismissal claims, especially those where an employer fails to prove procedural fairness can result in reinstatement of the employee or compensation of up to 12 months' remuneration (or 24 months for automatically unfair dismissals) awarded in favour of the employee. A well-draft policy on the disciplinary process acts as evidence of fair procedure and just cause, which is critical in proceedings at the CCMA and/or Labour Court.
5. Enabling Progressive Discipline
Schedule 8 encourages a system of progressive discipline. This means employers should attempt to correct employee behaviour through warnings and guidance before resorting to dismissal, unless the misconduct is of such a serious nature that dismissal is justified on a first offence. Formal disciplinary policies provide a framework for this process, including verbal warnings, written warnings, final warnings, and disciplinary hearings and should also incorporate a schedule of offences on how the warnings and hearings should be applied.
6. Upholding Organisational Culture and Values
South African labour law recognises the importance of mutual respect and good faith in employment relationships. Disciplinary codes can reinforce organisational values and foster a professional culture of accountability and mutual respect. When consistently applied, they can contribute to a more productive and harmonious workplace.
For Employers, implementing disciplinary policies and procedures is a legal imperative and a practical necessity. In practice, one often finds that employers either do not have these policies or they have inadequate and/or outdated policies. These policies do not only ensure compliance with the LRA, but also support a fair, transparent, and productive working environment.
In a legal landscape where procedural missteps can be costly, employers are well-advised to invest in developing clear, comprehensive disciplinary frameworks and guidelines, and ensure that its line managers and HR personnel are trained to implement them consistently and fairly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
