The role of an employer is demanding and multifaceted, and dealing with employee’s misconduct is an ever-present challenge. However, failure to address misconduct promptly compromises the procedural integrity of the process, leading to a strong argument of a procedurally unfair action (including dismissal where applicable). In addition, can undermine future attempts to terminate employment for similar issues. This article emphasizes the necessity of taking swift action against employee misconduct and alerts employers of the very real consequences of inaction or delay.
Understanding the Disciplinary Procedure
Before discussing the consequences of inaction or delay, it is important to understand the disciplinary process. When an employee commits misconduct, an employer is entitled to take disciplinary action, including terminating their employment, provided that the termination adheres to the principles of substantial and procedural fairness. Procedural fairness necessitates that employers follow a disciplinary procedure in line with South African labour laws and its own internal processes. This procedure should be progressive and corrective, aiming to rectify rather than punish the employee. According to Schedule 8 of the Labour Relations Act, various disciplinary measures should precede dismissal. These measures include:
Verbal warnings for minor misconduct
Written warnings for consistent misconduct
Final warnings for persistent or serious misconduct
Before issuing a final written warning, the employer must engage in a sit-down discussion with the employee. Each stage of the procedure may have specific validity periods, including for example, verbal warnings may last for three months, written warnings for six months, and final warnings for one year. These warnings are important as they may provide a basis for future heightened disciplinary response if the employee persists with poor behaviour.
Prompt Action is Crucial
As soon as the disciplinary process reaches the point of potential dismissal, it is crucial for employers to act without delay. Care must be taken to expedite the disciplinary process, whilst doing so in accordance with the norms and standards set out in the Labour Law and internal policies. Any unnecessary or inordinate delays in completing the disciplinary process may result in a finding that the process was unfair, even if the outcome was substantively fair.
The recent case of Broadcasting, Electronic, Media and Allied Workers Union obo De Klerk / South African Broadcasting Corporation SOC Ltd [2023] 4 BALR 3345 (CCMA), illustrates the stance held by the CCMA.
This matter involved an employee who was found to have been leaking the business’ confidential information during dealings with his wife’s business. The CCMA’s finding was that the employee was indeed guilty of the clandestine communication with his wife, and acting to the detriment of the corporation’s interests, on several occasions.
However, unfortunately for the employer, the commissioner found SABC’s delay of more than a year to be unjustifiable and subsequently found that the dismissal had been procedurally unfair. The Commissioner emphasised the fact that the onus to instigate disciplinary action is on the employer and that the rights of the employee should not be infringed because of the employer’s failure to do so. The outcome was an award finding the dismissal procedurally unfair, despite the merits of the employer’s argument. While the commissioner reinforced the employee’s dismissal, as the trust relationship had been irretrievably damaged, the employer was ordered to pay the employee five months’ pay compensation because it was procedurally unfair.
This finding was in accordance with the Constitutional Court case of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others [2018] ZACC 3 which emphasized that any disciplinary procedure must be prompt and fair. An inordinate delay can result in a finding of unfair dismissal, as it undermines the integrity of the process and infringes on the employee’s rights.
Checklist for Employers
To avoid the consequences of inaction, employers should follow this checklist when dealing with disciplinary matters:
Adhere to the recommended timeframes: enforce the time periods required by labour legislation. While there are no timeframes prescribed by labour legislation, the employer cannot unreasonably delay the process and any delay must be justifiable.
Gather Evidence: Collect all relevant information regarding the misconduct. While thorough investigations must take place, the employers must ensure that they do not conduct investigations in an untimely manner.
Review Disciplinary Procedures: Ensure familiarity and compliance with your organization's disciplinary policies and the prescribed validity periods of warnings.
Classify Misconduct: Determine the severity of the misconduct and identify the appropriate disciplinary action promptly and without unnecessary delay.
Decide on Next Steps: Evaluate whether to proceed with formal disciplinary action and initiate the process without unreasonable delay.
Err on the Side of Caution: When in doubt, opt for a hearing and issue a warning instead of ignoring the issue and potentially failing to adhere to the relevant procedure.
Conclusion
Employers must recognize that failure to address misconduct promptly can lead to substantial legal and financial consequences. By adhering to a structured disciplinary procedure and acting swiftly, employers can protect their interests and maintain a fair workplace environment. Ignoring issues not only risks procedural unfairness but also undermines the trust necessary for a productive employer-employee relationship.
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