By Ivan Israelstam, chief executive of Labour Law Management Consulting
The LRA requires that “…the standards of conduct are clear and made available to employees in a manner that is easily understood.” Therefore, employers are required to prove when it is dragged to the CCMA are the existence of the rule and that the dismissed employee knew he/she was breaking the rule.
In the case of Martens Vs Nel (1998, 9 BALR 1167) Martens was a bartender in a nightclub. He was dismissed for flirting with customers. He claimed at the CCMA that he had never been informed of any rule prohibiting this conduct. 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 company, partnership, sole trader and organisation needs to:
- Draw up its own Disciplinary Code
- Induct every employee as to its Disciplinary Code
- Keep proof that the above has been done so that, if a dismissed employee claims at the CCMA that he did not know the rules, the employer can prove that this is an invalid excuse.
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. As required by Schedule 8 of the LRA, these penalties need to be appropriate in the light of the seriousness of the offence.
When designing and implementing your Disciplinary Code remember:
- The offences need to be clearly described
- The rules need to be reasonable and fair
- They need to be realistic so that it is possible for employees to follow them
- You should try to include all those rules which pertain specifically to your company/organisation
- To communicate the code to all your employees in a language they understand
You should explain the reason for rules which employees could have trouble in understanding. For example, you may prohibit your employees’ from receiving visitors at work. If your reason is that visits interrupt work or that security could be compromised you should explain this.
To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.
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. The arbitrator found this to be unfair and awarded compensation because the employer’s code only allowed suspension without pay to be implemented with the employee’s permission.
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 in rules that are missing
- Train their management in the interpretation and application of the code.