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Beginner’s Guide to MISCONDUCT in the Workplace

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Beginner’s Guide to MISCONDUCT in the Workplace

[Content based on the weekly Workplace Radio Show, on Eden Radio, from 7 December 2016]

What is Misconduct?

Misconduct is a legal term that refers to the BAHAVIOUR of an employee, and more specifically to behaviour which contravenes a rule or behaviour which is not compliant with an obligation or duty under the Employment Contract, Legislation or Common Law

What are the legal requirements for dealing with Misconduct?

Under Chapter 8 and Schedule 8 of the Labour Relations Act, all employees are entitled to:

  1. Fair REASONS for disciplinary action
  2. Fair PROCEDURE in disciplinary action

Disciplinary Action should also be Progressive (meaning repeat offenders should receive progressively more severe penalties) and Corrective (meaning the purpose of disciplinary action should not be to punish offenders, but rather to correct their behaviour)

How do I identify Misconduct?

In order to identify whether an incident constitutes Misconduct and justifies disciplinary action to be taken, the following questions should be answered:

  1. Has the employee broken and rule/standard?
  2. If so, then:
    1. Is that rule/standard reasonable and lawful?
    2. Was the transgressor aware of the rule/standard?
    3. Or could the transgressor reasonably have been expected to be aware of the rule of standard?
    4. Has the rule or standard been consistently applied?
    5. Would dismissal be the appropriate penalty? (or would a less severe penalty be applicable?)

If the answer to these questions is YES, then you are dealing with Misconduct that would warrant disciplinary action.

How do I deal effectively with an incident of Misconduct?

Once you’ve identified that there has been an incident involving Misconduct, the first step is to do a thorough investigation to establish the exact facts of the case. During the investigation you can interview witnesses and also the alleged offender, making sure to get written statements from all parties. Should anybody change their version of events during the hearing, you can use the initial interview statement to proof the dishonesty.

Once the investigation has been concluded, you can then determine the exact disciplinary charges to be brought, by referring to your company’s Disciplinary Code and Procedure. It is crucially important to correctly identify the relevant charges, as the Chairperson of the Hearing will be unable to change the charges or find the Accused guilty of incorrectly worded charges.

The next step is to formulate a charge sheet and Notice to Attend Disciplinary Hearing. Remember to be as clear and comprehensive as possible when formulating the charges, giving as much detail as possible including the date and specific events related to the incident in question. The Accused has the right to prepare a defence and thus needs to have all relevant information available from the outset. Failing to provide enough detail could result in delays and postponements to allow for further preparation from the Accused.

What are the rights of an accused employee?

Every person who has been accused of Misconduct, has the following rights:

  1. The right to proper written notification of the allegations
  2. The right to have the allegations read and explained in a language and form which he/she can easily understand
  3. The right to prepare a defence against the allegations
  4. The right to have an interpreter assist during the hearing
  5. The right to be represented by a fellow employee or shop steward
  6. The right to state his/her case and to argue on the merits of the case
  7. The right to call witnesses and present evidence to support his/her defence
  8. The right to cross examine the company representative and witnesses called by the company
  9. If found guilty, the right to argue in mitigation of sanction

What format should the Disciplinary Hearing take?

Firstly it must be stated that it is not necessary to convene a Disciplinary Hearing for each and every incident of Misconduct. In less severe cases of Misconduct, such as ‘late coming’ for example, one is able to have an informal discussion with the employee in question, and issue a verbal or written warning without all the formalities of a Disciplinary Hearing. Disciplinary Hearings should be reserved for severe forms of Misconduct which could potentially result in a dismissal, or for repeat offences where the employee has already received a prior Final Written Warning.

A Disciplinary Hearing does not need to be formal or overly legally technical. The idea is that the Accused employee must be able to fully comprehend and participate in the proceedings, even without a representative to assist him/her. The most important consideration is whether the Accused is given a full and fair opportunity to state his/her case. It is, however, highly advisable to have an experience Chairperson presiding over the Hearing, someone who is well versed in the Rules of Evidence and who is comfortable with the provisions of the Labour Relations Act that apply to Misconduct.

The true meaning of “Summary Dismissal”

The Basic Conditions of Employment prescribes certain Notice Periods in the case of termination of the Employment Relationship. These stipulations must be complied with in any type of termination including resignation, retrenchment, retirement and incapacity. However, in the case of Misconduct, the Labour Relations Act makes provision for termination without the need to give notice. This is referred to as a SUMMARY Dismissal, which is often incorrectly referred to as “immediate” dismissal. It is very important to note that no dismissal of any nature may be done without a prior Procedure, such as a Disciplinary Hearing. Regardless of how guilty an offender may be, or how serious the offence is, there is no such thing as an “immediate dismissal” without a proper Procedure first having been concluded.



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