A Step-by-Step Guide How to conduct a …

1 A Step-by-Step Guide How to conduct a disciplinary Hearing A PEOPLEPLUS PUBLICATION Copyright Peopleplus Page 2 Preface Since the introduction of the new Labour Relations Act (LRA) of 1995 into South African Labour Legislation, the professional management of discipline at company level continues to be crucial. The general view that disciplinary policies should not be instruments of punishment but rather fair procedures to be implemented in correcting unsatisfactory employee behaviour continues to find wide acceptance. The purpose of this guideline is to provide management with the knowledge to handle issues of a disciplinary nature with confidence.

2 Prepared by Rodney De Villiers of Peopleplus Published in October 2014 by Peopleplus 90 Hennie Alberts Street Brackenhurst Alberton Box 0562 Verwoerdpark Alberton 1453 Telephone Number (011) 867-7971 / / This is not a work of final reference. While every attempt is made to ensure that the information published is accurate, the editors, publishers and printers take no responsibility for any loss or damage that may arise out of the reliance by any person upon any information it may contain. Copyright vests in Peopleplus. No part of this publication may be reproduced or distributed in any form or by any means without the prior written permission of Peopleplus.

3 Copyright Peopleplus Page 3 Contents SECTION DESCRIPTION PAGE NUMBER 1 The Principles of the Code of conduct 5 9 The importance of a disciplinary Code of conduct 5 The principles of applying the discipline in the organisation 5 Procedural Guidelines 5 What is not allowed 6 What is the fairness principle 7 What are the Fair Discipline Measures 8 How to determine the right sanction 9 2 Minor Offences 9 General 9 The steps to follow 9 Types of minor offences 9 Duration of the offence 9 3 Serious Offences 10 13 General 10 Steps to follow 10 Types of serious offences 12 Duration of the offence 12 Important no Note! 13 4 Conducting the Hearing 14 17 General 14 Roles and Responsibilities 14 The Process 15 Hearing in Absentia 17 5 The Appeal Process & Rights 18 19 The rights of the employee 18 The appeal process 18 Deciding on the outcome 19 Mitigating and aggravating circumstances 19 Copyright Peopleplus Page 4 6 Corrective Measures 20 21 Different types of corrective measures 20 Duration of warnings 20 Maximum corrective measures 21 Support Tools 22 - 29 disciplinary Hearing checklist Deciding on the finding Format of minutes Outcome of hearing Acknowledgement by the offender Appeal application form Copyright Peopleplus Page 5

4 YOUR Step-by-Step Guide Copyright Peopleplus Page 6 Section 1 The Principles of a Code of conduct The importance of a disciplinary code of conduct A disciplinary Code provides guidelines in which a manager can apply discipline in the organisation. It provides guidelines in terms of how severe the discipline should be applied in order to obtain corrective behaviour. The Principles of applying Discipline in the Organisation The primary objective when applying discipline is to find a workable solution to correct behaviour in the workplace and this is based upon the following: Standard of conduct in terms of ensuring that every employee is aware of the company code of conduct ; Fair Application in the way that each misconduct is dealt with as well as the sanctioning that goes with it.

5 To apply a corrective approach rather than punitive; To apply discipline without prejudice, meaning that consideration will be given to all facts. Every employee has the right to appeal should he or she feel aggrieved about the outcome of a disciplinary hearing. Procedural Guidelines Procedural guidelines are normally based upon the following: Copyright Peopleplus Page 7 Procedural Guidelines (continued) The focus should be on corrective rather than punitive measures; The disciplinary hearing and the decision should be based upon equity and fairness; An employee who has been accused shall be afforded an opportunity to state his or her case and to defend him or herself; Only the facts and circumstances relevant to the alleged misconduct must be taken into consideration.

6 Employee s / Accused s Rights: o To be represented by a fellow employee o Translation if required o State his/her case o Bring witnesses o Have a right to appeal What is not allowed? Any person in a managerial position may not act as a representative for his immediate subordinate; No legal representation is allowed; The Accused may not use external representation; Copyright Peopleplus Page 8 What is the Fairness Principle? There are 5 fairness principles that should be applied when determining a verdict: Be objective and focus on the facts and not the person involved; Allow the accused to prepare for the case and to state his/her case; Apply lawfulness , is the employee being victimised etc.

7 Apply procedural fairness : o The employee must be charged within a reasonable time of the offence being committed o He or she must be notified in order to gather their facts; o Notify the employee of the possible outcome for example if the offence is of a serious nature which could lead to dismissal; o Notify the employee of his/her rights; Apply substantive fairness: o The prescribed standard of counduct must be reasonable and legitimate; o The prescribed standard of conduct must have been known to the employee or the employee could reasonably have been expected to have known of the existence of the rule and the prescribed standard of conduct must have been regularly and consistently enforced; o The prescribed standard of conduct must have been broken / breached.

8 What is Fair disciplinary Measures? Copyright Peopleplus Page 9 Determine the question of guilt or innocence; Determine the sanction which would be appropriate. How to Determine the Right Sanction Focus on the gravity of the offence and find out whether it is in contravention with a standing rule in the company; Whether it is consistently applied in the past; Was the employee aware of the rule; Furthermore: Allow the employee to plead factors for mitigation such as length of service, personal circumstances, attitude etcetera; Also allow the mitigated a chance to state aggravation ( length of service, place where conduct took place, employee s position in the company, remorseless attitude, previous disciplinary records etc).

9 Provide the employee with the finding in respect of the disciplinary measure in writing Warn the employee of further disciplinary consequences should this misconduct occur again. Copyright Peopleplus Page 10 Section 2 Minor Offences General Minor offences have a minor impact and include aspects of any unacceptable conduct or breach of contract such as poor timekeeping. The Steps to Follow Step 1: Verbal warning or counselling in the event that it is a first offence. This could include counselling an employee and is normally not recorded on an employee s file in a formal manner. However, an e-mail is acceptable to confirm such a counselling or discussion session.

10 Step 2 A written warning: in the event that an employee repeats a minor misconduct for which he or she has previously been verbally warned, then a written warning can be issued. Please note the length of the validity of the offence in terms of the company s code of conduct . Step 3 A Final Written Warning: is deemed to be an action short of dismissal. As such, no employee shall be issued with a final written warning without a formal disciplinary hearing. Types of Minor Offences Negligence; Leaving the place of work without permission whilst on duty; Absence from work for three (3) consecutive days or less; Reporting late for duty; Rowdiness; Poor work standards; Treating fellow employees or superiors with disrespect; Insubordination; Failure to report illness or otherwise arrange for the circumstances to be reported to the immediate Line Manager, as defined in the Conditions of Service; Extended or unauthorised breaks during working hours.