Labour law expert Ivan Israelstam says organisations must be pedantic about their employee codes of conduct.
A disciplinary code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. These penalties need to be proportionate to the seriousness of the offence.
The LRA requires that “…the standards of conduct are clear and made available to employees in a manner that is easily understood.” Therefore, two of the things that an employer is required to prove when it is dragged to the CCMA are that:
(1) the rule that the employee is alleged to have broken existed at the time of the alleged offence, and
(2) that the dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.
In the case of Martens Vs Nel (1998, 9 BALR 1167) Martens was dismissed for flirting with customers. The arbitrator found that the dismissal was unfair because Martens had not been given the rules relating to behaviour towards customers. The employer was ordered to pay Martens 10 months’ remuneration in compensation. This makes it clear that every employer needs to draw up its own disciplinary code, induct every employee as to its disciplinary code, and keep proof that the process has been followed.
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When designing and implementing your disciplinary code, make sure it’s written in a language that all employees can understand. Remember to explain the reason for rules on which employees could have trouble in understanding. The offences need to be clearly described and the rules need to be reasonable, and realistic so that it is possible for employees to follow them. They must include all those rules which pertain specifically to your organisation. You should also try to get buy-in for the rules from your workforce by consulting them. That means drawing up draft rules and then asking employees for their views before finalising the decision.
Lastly, ensure that, if you deviate from your disciplinary code, you have a solid and legally acceptable reason for the deviation. In the case of Magagula vs Department of Health (2004, 2 BALR 156) the employee was suspended without pay for three months for accepting a bribe. He referred a dispute to the Public Service Bargaining Council where the suspension was found to be procedurally unfair. This was despite the fact that the employer’s disciplinary code provided for dismissal (a stronger sanction than suspension) of employees taking bribes. The arbitrator based his/her award on the fact that the employer’s code only allowed suspension without pay to be implemented with the employee’s permission. Such permission had not been obtained and the employer offered no acceptable reason for this deviation from the code. The employee was therefore awarded compensation.
In view of the dangers involved in designing faulty disciplinary codes and in the implementation thereof it is crucial that all employers assign a labour law and industrial relations expert to check their disciplinary code for legal defects, add rules that are missing, and train their management in the interpretation and application of the code.
Ivan Israelstam is the chief executive of Labour Law Management Consulting.
