Mind the law when taking disciplinary action

CRS Technologies says employers are not following the Labour Relations Act when managing discipline

There is a lot for employers to consider in taking appropriate action against employees who transgress rules, do not perform or are found to be in contravention of the labour law. Accordding to Human Resources and Payroll services provider CRS Technologies the current labour laws impose a lot of compliance requirements on employers, and are employee-centred which makes it difficult for employers to dismiss a non-performing employee.

Ignorance of the Labour Relations Act, specifically Schedule 8: Code of Good Practice: Dismissal,  combined with a lack of relevant skills and issues with enforcement are among the challenges faced by employers in managing discipline.

According to Nicol Myburgh, Head of Human Resource Business Unit at CRS Technologies, the core component of this law that deals with discipline and enforcement is Schedule8 or the Code of Good Practice. This area of the legislation deals with some of the key aspects of dismissal for reasons to conduct and capacity. This act emphasises the primacy of collective agreements and the key principle in this Code is that employers and employees should treat one another with mutual respect.

He emphasises that the act recognises three grounds on which a termination of employment might be legitimate, including the conduct of an employee, the capacity of the employee and the operational requirements of the employer’s business.

However, as CRS Technologies explains, one of the biggest issues facing businesses in South Africa today is that many employers are adopting a punitive approach to discipline contrary to the basis of the Labour Relations Act, which is orientated more towards correction and rehabilitation.

Myburgh says lately employers are using dismissals as their first option instead of a last resort, and they get rid of a problem by dismissing an employee while various other options are still on the table – such as to issue warnings, dock pay and/or temporary suspension.

Says Myburgh: “The current labour laws impose a lot of compliance requirements on employers, they are very much employee centred making it extremely difficult for employers to dismiss a non-performing employee. For instance, if an employee performs poorly and is dismissed accordingly, the employer must be able to prove whether or not the employee failed to meet a performance standard; if the employee did not meet a required performance standard whether or not; if the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; if the employee was given a fair opportunity to meet the required performance standard; and dismissal was an appropriate sanction for not meeting the required performance standard.”