The importance of timely disciplinary action

Sep 8, 2009


Some employers make the mistake of delaying instituting disciplinary action without any
reasonable justification. The consequences of this delay can be far reaching as confirmed
in the recent matter of PSA obo Bawa / Department of Social Services & Population
Development [2009] 6 BALR 575 (PHSDSBC).

The employee was charged with misconduct (related to dishonesty) for an incident that
occurred during August 2003. The employee was only presented with a disciplinary charge
sheet on 5 May 2004, almost a full year after the incident had occurred. She was
subsequently dismissed on 8 November 2004. Dealing with the procedural fairness of the
dismissal the bargaining council (‘the council’) confirmed that it was trite law that an
employer “must effect discipline in a prompt manner”. The Oxford Dictionary defined
“prompt” as “act without delay”. The council further held that the legal position that
disciplinary action must be taken promptly or within a reasonable time after the employer
became aware of the act constituting misconduct has been confirmed in a number of cases
of, amongst others, the Supreme Court of Appeal and the Labour Court. These courts
have held that an unexplained or unjustified delay in instituting disciplinary action was
grossly unfair and vitiated the decision to dismiss.

In the present matter the employer did not provide any reasons
for the delay in charging the employee with misconduct. The
commissioner held that there was an evidentiary burden on the
employer to explain or justify this delay. Where employers
were slow in instituting disciplinary action, the inference could
be drawn that they in actual event waived their right to do so
or that they in fact reconciled themselves with the continuation
of the employment relationship with the specific employee. In
the present matter it was not fair to proceed against the
employee and to dismiss her. The dismissal was held to be
both procedurally and substantively unfair for this reason.

Employers would, therefore, be well-advised to keep the following principles in mind when it
comes to instituting disciplinary action:

  1. Employers would therefore be well-advised to keep the following principles in mind when it
    comes to instituting disciplinary action:
  2. if there is some delay in instituting disciplinary proceedings, the employer should
    be able to provide reasons for this delay and proof that the delay was not

However, employers should guard against acting prematurely with the result that a proper
investigation is sacrificed and that any finding of guilty and a sanction of dismissal could
be set aside due to the lack of a proper case being presented. Where there is therefore
some delay in the process, the employer should be able to prove that the delay was for a
valid reason and as such reasonable and justifiable.

September 2009

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