Progressive Discipline

 

Progressive discipline is about correcting employees’ unacceptable behaviour before immediately resorting to a disciplinary hearing and possibly a dismissal. If an employee breaks a rule, he/she can be issued with a warning, after following a proper process. If the employee commits the same or similar misconduct again, he/she can be issued with another warning according to the Company’s Disciplinary Code. Accumulated warnings can eventually lead to a disciplinary hearing and possible dismissal. It is however important to keep in mind that the warnings and infringements must be of a same or similar nature in order to be considered as progressive discipline. The type of warning to be issued for a first offence will depend on the nature of the offence as some offences are more serious than others and thus a verbal warning would not necessarily be suitable for a first offence for misconduct, such as dishonesty or abusive behaviour.

A typical progressive disciplinary system begins with a verbal warning and culminates with a final written warning. This may lead to the employee’s termination should the employee thereafter commit the same or a similar offence and a disciplinary hearing is held. Employers should remember to keep detailed records of all warnings that are issued to employees, even a verbal warning should be recorded. Adopting a progressive discipline approach in the work place will ensure that all employees know that misconduct will not be tolerated. It will also ensure that all employees are treated equally and it will minimise the chances of an employee being successful with an unfair dismissal claim at the CCMA or the relevant Bargaining Council.

Allowing workplace misconduct to continue unchecked or without action creates various problems within the work place. Firstly, the employee may not know that their behaviour or actions are unacceptable. The company will then continue to suffer the consequences of the employee’s actions, which could result in reduced productivity and profits, quality control issues, loss of customers or customer dissatisfaction. Secondly, the employer may not be allowed to discipline future transgressors should he not apply these rules consistently among staff and soon a precedent is created at the workplace. Most importantly, progressive discipline is a way of proving a track record for repeat offenders by documenting their actions, which will in turn be used when a disciplinary hearing is indeed scheduled for such an employee and the previous warning/s will either be used to justify the need for a disciplinary hearing (if they are still valid) or they will be used as aggravating factors by the employer once the employee has been found guilty of an offence/s and the appropriate sanction must be decided upon by the Chairperson.

Another important point to note about progressive discipline is that warnings are not indefinite. It is common practice that a verbal and a written warning will be valid for 3 or 6 months and a final written warning for 12 months. If a warning expires, it can only be considered when the employee commits the same or similar misconduct thereafter in limited circumstances.

The rules and standards of a company are set out in their disciplinary code, which varies according to the nature of each business. These rules of discipline must be certain and applied consistently amongst all employees. The rules should also be clearly defined so that employees are aware of what sanction to expect when committing respective offences. We therefore suggest that each company attach, to their disciplinary code, a schedule of offences together with the appropriate sanction thereof. For example, should an employee be late for work and without permission and it is the first time the employee commits such offence, he/she could be given a verbal warning. However, should the employee make himself/herself guilty of abusive behaviour such as assault, intimidation or threats, even as a first offence it could justify immediately charging the employee and issuing him/her with a notice to attend a disciplinary hearing. The schedule of offences as well as their appropriate sanction for each time the offence is committed, will in all likelihood vary for each company, depending on the nature of each business.

The principle of progressive discipline is even incorporated into the Labour Relations Act. Schedule 8(3) Code of Good Practice: Dismissal states the following:

“3. Disciplinary measures short of dismissal:

 

 

  • All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.

 

 

 

  • The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.”

 

 

Employers should be aware that they have the option of suspending an employee who has allegedly committed serious misconduct. The suspension will be with full remuneration pending the outcome of an investigation and possible disciplinary hearing. The suspension will have the effect of removing the employee from the workplace, during this time, due to the nature of the offence/s and in order to finalise the investigation unhindered, as well as to preserve the integrity of evidence and prevent the possible intimidation of witnesses. Employers should give the employee a Notice of Intention to Suspend wherein the employee is given the opportunity to give reasons why he/she should not be suspended. These reasons should be considered by the employer, and should the employer still decide to suspend the employee, the employer should provide the employee with a Notice of Suspension.

Should your company be in need of assistance with any disciplinary processes, please do not hesitate to contact us. We offer various different Monthly Retainer Plans (MRP) for employers starting at R 1 160.00 (VAT incl) per month, for employers who employ between 1-30 employees. Should you have more employees we will structure a plan around your specific needs. Our MRP includes drafting of your employment contracts, policies and warnings, to name a few.

Contact our office today on 012 809 4461 or send an e-mail to info@dtattorneys.co.za or admin@dtattorneys.co.za or maria@dtattorneys.co.za for more information on Progressive Discipline or our Monthly Retainer Plans.

 

 

Noelene van Coller

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