Disciplinary Code, Procedure and Matrix

Transcription

1 1. Scope and Purpose The following Code and Procedure is a guideline of the Employer s disciplinary code and shall be applied consistently in respect of all employees within the Company. 2. Policy Statement It is Management s belief that a formal Disciplinary Code and Procedure is essential for the efficient operation of the Company s business, fair and consistent treatment of all employees and for ensuring healthy industrial relations environment. To achieve this, the following principles must be observed: Administering discipline is the duty of management. Informing all employees of the rules and regulations in force in the Company is the duty of management. Management will, in the first place, seek to correct an employee s poor performance or conduct discipline through informal counselling by his/her direct supervisor. Management will apply the formal disciplinary process only when informal counselling has been unsuccessful or the actions of the employee have been such that informal counselling is inappropriate. Management accepts that no employee will be disciplined without a fair hearing and an opportunity to clearly state his case, unless the employee in question waives this right by failing to attend such a hearing through his/her own choice. In such an instance, the hearing can/may proceed in his/her absence. Clear evidence of a breach of the Company rules and regulations or unsatisfactory performance must be established prior to dismissal by means of the proper disciplinary procedure. Careful consideration must be given to the circumstances before disciplinary action is taken. Management will strive, whenever possible and with due regard to the circumstances of each case, to be consistent in taking disciplinary action. 3. Definitions Management shall include employees from supervisory level upwards for the purpose of discipline. Management is defined as those capacities with authority to discipline and counsel and is specifically described as: supervisors, Senior Supervisor, and the Managing Director. Page 1 of 12

2 Day shall mean, for the purpose of this procedure, a normal working day and excludes Sunday and Public Holidays as recognised by the Company. Conduct (misconduct) by an employee is interpreted to be the unauthorised and / or inappropriate action by the employee in contravention of the rules and regulations of this code. Capacity (incapacity) shall be defined as the sub-standard performance of an employee in contravention of the company code by reason of incapacity due to illness / poor performance. Operational Requirements is defined as the functional demand of the operation by reason of technological, economical and practical restructuring. Representative shall mean a colleague or co-employee. 4. Disciplinary Code Although this is the recommended disciplinary action, a degree of flexibility should be maintained in order to apply the appropriate degree of discipline. The Company may exercise disciplinary action against an employee for good cause not stipulated in the Code. An employee may, if he wishes, be assisted in any disciplinary action by a colleague or co-worker of his choice. Said representative may present evidence, cross-question witnesses and raise questions. Unless the action of misconduct warrants summary dismissal as per the Company s disciplinary code, an employee will not be dismissed without having had the benefit of a disciplinary enquiry. An employee shall have the right to lodge an appeal, in writing, to a higher level. A verbal and written warning shall remain valid for a period of six working months. A third offence, or unrelated offences, warranting a written warning could result in dismissal pending the outcome of the disciplinary enquiry save for the final written warning which will remain valid for a period of twelve working months. The signing of a verbal/written warning by an employee means that he/she acknowledges receipt thereof, and not acceptance of the contents. Should he/she deny the allegations contained therein, it must nevertheless be signed by the applicable employee. An appeal may be lodged against said given warning. Should an employee refuse to sign any documentation in terms of this procedure, then: o an independent witness should be requested to sign acceptance of said document by the applicable employee; o Management s representative attending to the matter should stipulate reasons for employee s refusal to sign said warning; Page 2 of 12

3 o o o Such refusal to sign shall not invalidate the effect of the document nor relieve the employee from appealing against it. Management will not conduct any disciplinary action against the employee without allowing him/her the right to internal representation. Management shall have a witness for the company present when conducting/administering discipline/counselling. The Company shall apply the provisions of the Labour Relations Act No. 66 of Classification and Description of Transgressions / Incapacity 5.1. Assault or Attempted Assault Any physical attack on another person. Riotous behaviour, group incitement, or intentional damage to personal or company property. Intimidation of a co-employee or incitement to violence. Any verbal threat or comment inciting suspicion, fear or intimidation Breach of Good Faith Non-compliance with secrecy clauses in terms of the Employment Contract. Non-compliance in maintaining confidences in terms of the Employment Contract. Insolence and/or scandalous remarks regarding the Company, management or another employee. The acceptance of private work for compensation in conflict with the demands and needs of the organisation. Engaging in any other business during company time. Allowing conflict of interest during company time. Utilising company expertise and equipment for private, personal gain without authority Wilful and/or Negligent Damage / Loss / Abuse to Company Possessions and Property Intentional or negligent loss, damage or abuse by means of an act causing total or partial destruction to Company property. Sleeping on the job that results in loss/damage/risk of company property or employees. Wastage of material/product. Poor maintenance of vehicle or equipment for which an employee is responsible. Driving a company vehicle without the necessary authorisation Drivers Non-Adherence to Specified Instructions Not ensuring that vehicles are maintained in a clean condition on a regular basis Theft and Unauthorised Possession Possession of company property without authorisation. Page 3 of 12

4 Possession of co-employees property without consent. Misappropriation of company funds or an attempt thereto for any unauthorised aim. Unauthorised disposing of or possession of manufactured products/articles/incomplete goods/rejects. Misappropriation of clients property or an attempt thereto for any unauthorised aim Dishonesty (Fraudulence) Misrepresentation when dispersing and recording product. Failure to account for product or equipment in the care of the employee Dishonesty (False Evidence) The intentional submission of false evidence or wrong or misleading information or statements in writing or verbally, or the refusal to submit evidence in an investigation pertaining to matters of the employer Fraudulent Misrepresentation Any misrepresentation by an employee with the intention to aggrieve or embarrass, or potentially aggrieve or embarrass the employer Forged Documentation Deliberate supplying of incorrect or falsified information. Fraudulent medical certificates Timekeeping Employee s clocking/signing in/out for each other. Falsified time sheets. Late arrival, early departure and poor time keeping before or after breaks Insubordination Failure to comply with safety standards and procedures. Rude comments and/or use of foul language to a superior. Refusal to comply with contractual obligations or to obey reasonable, lawful instructions. Non-compliance to standing orders or procedures. Derogatory hand signs directed at a person, and graffiti. Use of abusive, derogatory and offensive language. Driving company vehicle without permission. Failure to observe company rules, policies and codes Intoxication Being under the influence of alcohol or hallucinatory drugs at work or being in unauthorised possession of alcohol or hallucinatory drugs on Company premises. Page 4 of 12

5 5.13. Unauthorised Possession or use of Weapons Unauthorised possession or use of any weapon for any other purpose than protection of self whilst performing duties. Unauthorised possession of a firearm. Possession of a firearm in contravention of regulation Absence without Leave Absconding will be construed to mean absence for a period of three working days or longer from a workplace by an employee without prior consent. Absence during the course of the day. Absent for a period of one working shift. Failure to produce a medical certificate when claiming absence due to illness. Failure to complete contractual shift overtime Failure to Observe Security and Health & Safety Regulations Failure to wear required protective clothing or company uniform (based on conditions specified by the OHS Act) Failure to adhere to safety standards and procedures. Smoking in a no smoking area. Being in an out of bounds area without authorisation. Failure to report immediately on an unsafe area or unsafe structure. Failure to report any operation irregularity. Wilful or negligent damage to or loss of protective clothing and equipment/vehicle. Failure to report any damage to equipment/vehicles/facilities to Operations department. Non-compliance to hygiene procedure/standards/facilities. Failure to report any accidents involving company vehicles. Failure to report any accidents involving company vehicles and/or third party vehicles. Failure to observe regulation and legislation by littering on company property, clients property, public roads and off-road facilities Disrespect Impudence: Any rude, ill-mannered or contemptuous attitude, action or words by an employee. Disrespect towards another employee/or the public in terms of race, gender, colour, origin, sex, sexual orientation, age, disability, religion or any other constitutional right aspect. Sexually harassing a co-employee or member of the public by the following behaviour when it is perceived by the affected person as such. Included are: suggestive remarks, innuendoes, unwanted physical contact, staring, leering, any obscene gesture, indecent exposure or display of sexually offensive material including pictures, magazines or objects, or any other unwanted contact. Page 5 of 12

6 5.17. Incapacity An employee performs a task or duty without the required attention and care. Said task is not performed timeously and at an acceptable standard. Neglecting a task or certain duty resulting in said task having to be repeated. Performing a task or duty in such a manner that co-employees or any person, he included, are at risk of being injured. Performing a task or duty in such a manner that equipment is at risk of being damaged. Tardious completion of tasks in terms of reasonable expectations without an acceptable explanation. Performing a task or duty at standards below the accepted and practised Company levels. Not completing instructions / tasks timeously and adequately as per instructions. Failure to comply to dress code when reporting for duty Misconduct Participation in or furtherance of a non-conforming strike. Participation in or furtherance of a strike in contravention of an interdict or court order. Inappropriate conduct during a conforming strike. Gross insubordination. 6. Disciplinary Procedure Stages of Procedure in regard to Warning Offences: 6.1. Verbal reprimands shall constitute an informal disciplinary procedure. These warnings shall be recorded as an informal warning to be placed on the employee s file Written warnings: In the event of misconduct or unsatisfactory work performance, the direct supervisor will investigate the matter by conducting interviews with the accused employee and any relevant witnesses. Such interview should take place with the employee representative present, unless the employee does not elect a representative. Such interview should take place with a company witness present to ensure objectivity and reasonableness. Should the allegations be substantiated, the direct supervisor must complete the written warning notice, explain it s technicalities and request the parties to sign acceptance of same Final Written Warning: In the occurrence of any further relevant offence, a formal disciplinary hearing must be held prior to the issuing of a Final Written Warning based upon the procedure laid out in terms of this policy. Page 6 of 12

7 It is advisable that all warnings to an employee be directed to him/her in the presence of his/her representative should he/she elect to have one. The warning notice will subsequently be placed on the employee s file. The employee is entitled to appeal against said warning which leave of appeal should not be withheld Procedure in terms of final written warning hearings and dismissible offences: In the event of a dismissible offence having been committed, the complainant/initiator will commence investigations by interviewing all relevant parties. A written record of such interviews should be kept. Statements should be obtained from all relevant witnesses containing all relevant information. Should the complainant be of the opinion that misconduct may have been committed, notice shall be given to the employee in terms of his Notice of a Disciplinary Enquiry. It is recommended that a minimum of at least 48 hours be given. Pending the enquiry, the employee may be temporarily relieved of his duties on full pay, in order to avoid the possibility of further conflict between parties. The disciplinary enquiry shall be held by the chairperson, who must be a neutral person to the enquiry and not influenced by means of earlier disclosure regarding the alleged offence. The chairperson will make the recommendation in terms of the disciplinary sanction to be imposed depending on the evidence and witnesses led by management (the complainant) as well as the defendant. Management should not attempt to influence the decision of the Chairperson. Management may, however, request the desired sanction at the appropriate time within the enquiry. After such recommendation has been made to the Human Resources / Personnel Department, said recommendation to be confirmed or amended as may be deemed appropriate. The Chairperson will reconvene the hearing to put forward the confirmed sanction to the affected employee. 7. Appeal Procedure: An employee who regards any warning or dismissal as unfair may appeal against said which leave to appeal shall not be unreasonably withheld. An employee must lodge an appeal in writing within seven (7) days after the issuing of the warning or the sanction of the disciplinary enquiry chairperson. Page 7 of 12

8 Said must be done on the prescribed form available from the Personnel/Human Resources Department or from Management. On receipt of such Application to Appeal form, the Personnel Manager will direct all relevant documentation to the appointed Appeal Chairperson. The Chairperson will in the case of a Written Warning review the statements and records, interview the employee again and thereafter make his/her final decision. In the event of an appeal being lodged against a final written warning and/or a dismissal, the Appeal Chairperson will convene a hearing to hear arguments on the grounds of appeal only, where after he/she must also review the records of the initial hearing and make a final determination. In all appeal cases, the outcome of the appeal must be conveyed within a reasonable period of time. 8. Arbitration Procedure: An employee shall have the right to utilise the normal appeal procedure and to refer the issue for internal arbitration within 7 (seven) days should the outcome of the appeal hearing be unsatisfactory. The internal arbitration decision shall be final and binding. The arbitrator must take into account any special circumstances and any unique issues surrounding the case, the Company s disciplinary code, past practise and precedents, and the employee s personal and work record. Should the employee not choose the internal arbitration procedure, he/she shall have the right to refer the matter to the CCMA for arbitration within 30 days should the outcome of the disciplinary enquiry be unsatisfactory. The employee has the right to choose how he/she wishes to refer the matter. The following dispute resolution mechanisms are available to the employee: Disciplinary Enquiry Commission for Conciliation, Mediation and Arbitration. (Final and Binding): First Conciliation under the auspices of the CCMA, and where conciliation fails, arbitration. Disciplinary Enquiry Appeal Internal Arbitration. (Final and Binding). Disciplinary Enquiry Internal Arbitration. (Final and Binding). Where Internal Arbitration is selected, consensus must be reached on the selected arbitrator. The Arbitrator must be a person with the necessary expertise, skill and qualifications. The Arbitrator must be objective. Page 8 of 12

9 The grievant is entitled to representation by a co-employee and/or the union. Legal representation in issues of conduct and capacity will not be permitted during the internal arbitration process as well as under the auspices of the CCMA. As such, both parties will be entitled to mutual representation by a co-employee and/or the union during the internal and external arbitration process. NOTE: (Automatically unfair dismissals) as per the Labour Relations Act 66 of 1995, Section 191, are to be referred to the Labour Court for adjudication and not to internal arbitration in accordance with this procedure Internal Arbitration Should an employee decide to utilise the Internal Arbitration Procedure, an application form can be obtained from the Personnel Manager. Said form to be lodged with the Personnel Manager within 7 (seven) days of the date of the disciplinary enquiry/dismissal. The arbitration hearing must be scheduled within 14 (fourteen) days of the day of dispute, or as soon thereafter as per agreement by the parties. A Pre-Arbitration meeting must subsequently be scheduled at least 3 (three) days prior to the Arbitration hearing in order to finalise the following: o The selection of the Arbitrator; o The terms of reference; o The narrowing of the issues; o The disclosure of documentary evidence; o The calling of witnesses, and o The order sought from the Arbitrator. The Arbitrator must give his/her award within 3 (three) days of the Arbitration Hearing, which award is final and binding. The Grievant cannot appeal against an arbitrator s award Arbitration at the CCMA: If conciliation fails, a party may request that the CCMA resolve the dispute by arbitration. At an arbitration hearing a commissioner gives both parties an opportunity to fully state their case. The commissioner then reaches a decision which must be accepted by both parties. The procedure: The party requesting arbitration completes the Request for Conciliation form obtainable from the Personnel Manager and returns it to said office to be served on employer. It is subsequently forwarded to The Registrar at the Provincial Office. Page 9 of 12

10 Where Conciliation has failed, the certificate issued by the CCMA confirming that the dispute was unresolved through conciliation must be attached to the Request for Arbitration form and forwarded to the Registrar. The Request for Arbitration form can be obtained from the Personnel Manager. A party must refer an issue in dispute within 30 (thirty) days of the day of dismissal to the CCMA. If a party does not want the commissioner who conducted the conciliation proceedings to arbitrate the dispute that party must fill in a LRA form Where both parties agree on a particular commissioner to arbitrate them then must inform the CCMA within 48 hours of the dispute being certified as unresolved. 9. Disciplinary Matrix Page 10 of 12

11 NATURE OF OFFENCE 1 ST 2ND 3RD 4TH ASSAULT Any physical attack; riotous behavior; group incitement; intentional damage to company property; intimidating co-employees. BREACH OF GOOD FAITH Non-compliance with secrecy clauses; insolent remarks; private work for gain during business hours; other business; conflict of interest; utilizing company expertise for private gain; engaging in duties whilst taking prescribed medication which can impair capacity. WILFUL AND/OR NEGLIGENT DAMAGE/LOSS/ABUSE TO COMPANY POSSESSIONS AND PROPERTY Intentional or negligent loss due to an act; sleeping on the job resulting in loss/damage of company property; material wastage; poor maintenance. Driving a company vehicle without authorization; carrying of passengers. THEFT AND UNAUTHORISED POSSESSION Possession of Company property without authorization; possession of co-employees property; misappropriation of company funds; unauthorized disposing of or possession of products; misappropriation of clients property. DISHONESTY False evidence; fraudulent misrepresentation; forged documentation; fraudulent medical certificates. TIMEKEEPING Late arrival, early departure and general poor time keeping. FINAL W/W FINAL W/W W/W FINAL W/W FINAL W/W INSUBORDINATION FINAL W/W Non-compliance to safety standards; foul language or comments; refusing to obey lawful and reasonable job instructions; noncompliance to standing orders; derogatory hand signs and graffiti; driving of company vehicle without permission; failure to observe company rules, policies and codes. INTOXICATION FINAL W/W Under the influence of alcohol or hallucinatory drugs at work; unauthorized possession of alcohol or drugs on company premises. Page 11 of 12

12 NATURE OF OFFENCE 1 ST 2ND 3RD 4TH ABSENCE WITHOUT LEAVE FINAL W/W Absence for a period of three days or longer; during the course of the day; for one working shift; failure to produce a medical certificate when claiming illness; DISRESPECT W/W FINAL W/W Impudence towards an employee, superior or the public; disrespect; sexual harassment CRIMINAL MATTERS Charged criminally resulting in the contravention of the employment contract in relevant matters where the company/public is affected. INCAPACITY Performing a task not at an acceptable standard nor timeously; neglect causing repetition; performing a task in such a manner to place him/her/co-employees/the public at risk; tedious completion of tasks; substandard performance; non-adherence to acceptable hygiene and personal appearance standards. VERBAL WARNING W/W FINAL W/W Page 12 of 12