Failure to apply fair disciplinary procedures

Sep 8, 2008


Many managers view disciplinary hearings as a bureaucratic nuisance, not realising
what the actual purpose of the hearing is or how just how risky non-compliance can be.

The obvious financial risk is that of an order by a CCMA commissioner for reinstatement
and back pay, or compensation, if a disciplinary hearing is found to be unfair. Non-compliance can also lead to bad publicity and resultant reputational damage, as
arbitration hearings as arbitrations at the CCMA are public affairs. However, there is also
the fact that failure to comply with disciplinary procedure guidelines may contravene the
organisation’s values. When this happens, employees begin to doubt management’s
commitments to those values: non-compliance against one employee sends an
important message to other employees about the kind of treatment they can expect
when their turn arrives to be taken to task.

Disciplinary hearings are there primarily to give the decision-maker (the person chairing
a hearing) an opportunity to gather relevant details about a disciplinary incident in order
to arrive at a rational, considered decision with regard to the facts of the matter and the
sanction to be imposed. In the process, the employee at the receiving end must be
allowed to: prepare his or her case; call and question witnesses; obtain internal
representation; and given the opportunity to state his or her case in response to the
allegations. Without this, the decision of the chairperson may be based on emotion,
rather than the facts of the matter. By applying his or her mind to the facts as presented
by both the employer and the employer’s representative, the chairperson’s decision
becomes not only more rational, but it also serves to limit the risk of the organisation
losing the case if it were to be referred to the CCMA by a disgruntled employee.

What are the risks of losing? In terms of the Labour Relations Act, if a dismissal is found
to have been for an invalid reason (e.g., insufficient proof of wrongdoing) the CCMA can
reinstate the person in the jobs that they lost, with back pay. if reinstatement is not
awarded (e.g., because the employee doesn’t want to go back to the employer) the
CCMA commissioner can award up to 12 months’ pay in compensation. Further, if the
reason for the dismissal is found to have been based on unfair discrimination (e.g., race,
sex, age, pregnancy, HIV status and so on) the level of compensation rises to a
maximum of 24 months!

If the decision to dismiss is only procedurally unfair, i.e., there was a good reason for the
dismissal but it was executed in a procedurally unfair manner, reinstatement cannot be
ordered, but compensation of up to 12 months’ pay can.

So, the financial cost may be considerable. However, the extent of the harm done to the
organisation’s reputation, both internally and externally, if employees are dismissed for
insufficient reasons or in a procedurally unfair manner, is more difficult to quantify.
Nevertheless, experience has shown that other employees often watch carefully to see how the organisation treats their colleagues. If the treatment is perceived to have been
poor, unethical or simply in conflict with the organisation’s values, don’t be surprised if
demotivation, under performance and increased staff turnover result from this.

What can be done? First, managers need to become acquainted with the legal
requirements applicable to discipline and dismissal, as well as their organisation’s own
procedures. The latter is important, for while a commissioner at the CCMA may still have
some sympathy with an employer who does not know all the niceties of the law,
managers who fail to comply with their organisation’s own procedures should not expect
much sympathy. Second, managers need to realise that even if they know how to deal
with discipline and hearings, the law can only go a short way towards ensuring that
disciplinary problems do not arise. The law is by nature reactive and seldom
preventative. The only effective preventative is good leadership, good HR practices and
the ability to develop trust in the relationship.

Trust is critical. All relationships need rules (however informal) to function effectively. But
they also need trust: a difficult thing to define and to obtain, but something that can be
lost very easily. Key ingredients for healthy employment relationships based on trust
would include effective, honest and transparent communication, credibility of
management; competent management; and consistency (predictability in behaviour).
Where these are present, it not only serves to ensure greater cooperation between
management and staff, but also tends to reduce disciplinary incidents, absenteeism and
under performance. Where these are absent, rules are applied in a mechanical and
negative fashion, which does little to build relationships but goes a long way towards
destroying them.

Third and finally, managers need to ensure that their decisions with regard to employees
are not only in line with what the law requires, but that they are always justifiable in
terms of the organisation’s values. Sometimes a decision may be legally uncertain
(perhaps because the law isn’t clear, or the decision is borderline) or it is thought that
dismissal is the best way of limiting the organisation’s risk (where the cost of losing at
the CCMA is outweighed by the risk of retaining an employee). Managers would do well
in such situations not to merely focus on the latter, e.g., by asking HR to advise them
about the ‘worst case scenario’ if the matter went to the CCMA, but to also ask
themselves: ‘Does this decision in any way run counter to the organisation’s values?’ If it
does, the harm done to the reputation of the organisation if the decision was
nevertheless made, can be incalculable.

Prof Barney Jordaan, Maserumule Consulting and USB

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.