VAAL UNIVERSITY OF TECHNOLOGY DISCIPLINARY CODE AND GRIEVANCE POLICY

Transcription

1 VAAL UNIVERSITY OF TECHNOLOGY DISCIPLINARY CODE AND GRIEVANCE POLICY 1. THE PURPOSE AND INTRODUCTION The Vaal University of Technology is committed to creating an environment where workers are encouraged to participate in decisions that directly affect their daily work lives. In this regard, the Vaal University of Technology seeks to maximize the effectiveness of the relationship between Employer and employees by: 1.1 Ensuring consistent and fair maintenance of discipline for the achievement of its strategic objectives; 1.2 Creating an environment whereby employees may be comfortable that their grievances will be addressed; and 1.3 Balancing the employer s managerial prerogative with the collective / individual rights of employees. This Disciplinary Code and Grievance Policy replace the one signed on 25 November 1992 in its entirety. The Code shall be read in conjunction with the applicable provisions of labour legislation. 2. MAINTENANCE OF DISCIPLINE 2.1 FAIR REASONS Fair and consistent maintenance of discipline will be based on the following grounds: Employee s conduct that does not support the achievement of the Vaal University of Technology goals or deviates from the set rules/standards of good conduct; Enforcement of policies and professionalism in the workplace. These paragraphs do not only relate to disciplinary process but to other labour relations processes, namely incapacity and redundancy respectively. Therefore, they should be deleted from the document. 2.2 MISCONDUCT The employer is committed to the concept of corrective or progressive discipline where practically necessary i.e. efforts should be made to correct employee s behaviour through a system of counseling and warnings where necessary for as long as there are positive results in employee s behaviour But, if there is malice or lack of co-operation or deliberate and repetitive misbehaviour then serious disciplinary measures will be taken Therefore the disciplinary code should not be applied mechanically but with discretion and sound judgement. Page 1 of 12

2 2.3. SCOPE OF APPLICATION The Code will apply to all employees of the Vaal University of Technology. However, the predismissal arbitration procedure shall be instituted for employees on post levels 1 5, employee relations practitioners and office-bearers of unions operating in the workplace. Notwithstanding this scope of application, union office bearers will be subjected to this code on issues relating to their individual employment contracts with the university SCHEDULE OF MISCONDUCT S AND SUGGESTED ACTIONS: Penalties provided for hereunder are a guide and therefore are not exhaustive. Each case is to be dealt with on its own merits as well as the appropriateness of dismissal as a sanction. The severity of the sanction taken must be governed by the degree of the breach under the following circumstances: Vision and mission; Values, (provided that the values are developed in consultation with stakeholders and publicized throughout the university); Strategic objectives; and The Transformation Charter of the Vaal University of Technology. Any offence/breach committed but is not listed in the schedule should still be dealt with in terms of this procedure, with the sanction being determined on the basis of equity and fairness. Misconducts are divided into four broad levels for ease of reference and application i.e. A = Gross misconducts; B = Behaviour related misconducts; C = Job performance related misconducts and D = Time & Attendance related misconducts. Page 2 of 12

3 DISCIPLINARY CODE CODE D1 LEVEL OF MISCONDUCT Level A MISCONDUCT Gross Driving of University s vehicle or operating or using other machinery without a valid drivers licence. ACTION 1 ST OFFENCE D2 Fraud and/or forgery D3 Corruption. Bribery ( Giving or receiving ) D4 Add gross disrespect, negligence, dereliction of duties Unauthorised removal/possession of University s property D5 Misrepresentation of facts D6 D7 Misappropriation of University s funds Any act of criminal nature performed on the premises of Vaal University of Technology. Armed intimidation. Physical assault (employer, fellow employee or a customer of the Vaal University of Technology D8 Incitement of others to commit an offence D9 Gross insubordination D10 Wilful damage to the property, including intellectual property and systems of the Vaal University of Technology. D11 Tampering with students marks ACTION 2 ND OFFENCE ACTION 3 RD OFFENCE D12 Sexual harassment Level B D13 Dealing in drugs/drug trafficking on site D14 Deliberate disclosure of Level B confidential information D15 Fighting on the premises Level B D16 Rape or indecent assault D17 Bringing the name of the University into disrepute D18 Desertion Page 3 of 12

4 Level B Conduct/Behaviour Related B1 Being under the influence of FWW alcohol or drugs during working hours and whilst on duty B2 Sleeping on duty FWW B3 Dereliction of duties and/or negligence i.r.o. duties FWW B4 B5 Failure to obey the safety standards and security procedures Insulting behaviour including swearing/ridiculing others unreasonably, or showing hatred or contempt of others FWW FWW B6 Smoking in a non-designated and unsafe or dangerous area FWW B7 Abuse of sick leave FWW B8 Insolence (cheekiness, FWW impudence, disrespect or rudeness) B9 Absence without leave and/or permission FWW Level C Job Performance Related P1 P2 Incorrect and deliberate misuse of trip routes Failure to obey the operational instructions of a duty WW FWW WW FWW P3 Persistent failure to perform assigned duties. FWW -Level B T1 T2 T3 Level D Time and Attendance Related Poor time keeping / late coming to work. Absence from work for no valid reason (merge with B10) Loafing (absence from assigned workstation without permission) WW FWW WW FWW WW FWW NB: All level A misconducts will have to be thoroughly investigated in a preliminary investigation with guidance from ER unit. No employee should be charged nor suspended until this requirement has been complied with. Page 4 of 12

5 2.5. RESPONSIBILITY FOR DISCIPLINE AT THE VAAL UNIVERSITY OF TECHNOLOGY It is the duty of management to take corrective action against employees who are in breach of their contracts of employment either on account of misconduct or incapacity and the disciplinary procedure is for the employees benefit to protect them against arbitrary, unfair treatment from management. An employee has a duty to report to management any misconduct committed by another fellow employee. Employees are also entitled to bring to management s attention any grievance (dissatisfaction or feeling of injustice) in connection with an employee s work situation. This should be done either verbally or in writing. 2.6 STEPS IN THE PREPARATION OF A DISCIPLINARY CASE/ENQUIRY Step 1 - The Incident & Investigation It is incumbent upon the line manager to investigate the reported incident as soon as is practically possible from the date on which the Vaal University of Technology became aware of the alleged act of misconduct or such longer period as may be reasonable in the circumstances. Should the line manager/independent investigator find no substance in the alleged incident, no charges may be brought up against an employee. The Vaal University of Technology is obliged to provide an employee or an employee s representative with an investigation report upon request, at least five calendar days prior to the matter being set down for hearing. In such circumstances where the manager finds it impossible to investigate a reported incident within a reasonable time, the following actions must be carried out: Step 2 - The line manager must inform the accused employee of the reasons for such a delay and the subsequent planned action; and The line manager may submit to the ER office a report on sequence of events wherein the record of details of the investigation are noted Suspension of Employment (Pending investigation and the outcome of enquiry) [Optional] Line manager/ Supervisor may suspend an employee when they consider it undesirable that the employee remains at work while an investigation is taking place. The suspension must be with full pay and benefits. An employee may also be suspended with full pay and benefits where: There is a potential that further harm can occur e.g. an employee suspected of dishonesty who is in charge of significant amounts of money; On any other serious matter which might possibly result in dismissal; and There is reasonable belief that the accused might interfere with documentary evidence and witnesses. An employee must be advised in writing why he/she is suspended and for how long i.e. until the enquiry is held or finalised or investigations / part thereof is concluded, etc. Step 3a - The Prosecutor It is the duty of the line manager/supervisor to prosecute and present the Vaal University of Technology s case at the enquiry. This should be viewed from the perspective that discipline is a line function. Page 5 of 12

6 Step 3b - Drafting Of Charges The employees line manager will draft the charges on the advice of and in consultation with the ER office. The line manager must serve such charges to the employee in a written format, at least five calendar days prior to the hearing. Notwithstanding the non-exhaustiveness of this code, it is imperative to specify the standard or norm (rule), which the employee is alleged to have breached and sufficient factual information to identify the nature, time etc. of the breach. Step 3c - Appointment of Chairperson Discipline is a line function and therefore the next person in line from the one who served a charge sheet should chair the enquiry. The Chairperson should be independent and should not have been involved in the incident or the investigation of the incident. Enquiry decisions and reasons should be recorded and communicated to the accused employee as soon as practically possible, but not more than five calendar days. See Annexure C. Step 4 - Notice of Enquiry Line management/supervisor should issue an employee the notice of enquiry. The notice of enquiry should be in writing and be specific in relation to the charges, time and date of the enquiry. See Annexure B. In the event that an individual requires a postponement, such requests should be in writing and served at least forty eight hours before the hearing, and the chairperson must apply his or her mind to the matter and make an appropriate decision. Permissible grounds for postponements are ill health of the employee, compelling operational requirements of the representative, compelling and written reasons for non-attendance of willing witnesses. Step 5 - The Constitution of a Disciplinary Enquiry This is a formal meeting constituted by the following participants: The Chairperson The Prosecutor/Complainant The ER Representative. The Employee/accused. The Employees Representative (a shop steward or a fellow employee). Scribe to be provided by the line department In the event a shop steward faces a disciplinary enquiry as an accused employee, he or she may be represented by a Trade Union Office bearer or an official. The Interpreter (optional). The purpose of the disciplinary enquiry is to establish facts around the alleged charges and grant parties to present, defend, cross-examine witnesses and re-examine witnesses. The participants in a formal disciplinary enquiry will assume the following roles: CHAIRPERSON: Manages the entire process, establishes facts, makes ruling, makes findings of guilt/innocence and imposes sanctions. (Provide training) Page 6 of 12

7 ER REPRESENTATIVE: advises parties in relation to procedural/substantive fairness of the entire process THE PROSECUTOR/COMPLAINANT: prosecutes the case on behalf of the Vaal University of Technology, cross-examines the employees witnesses and presents aggravating circumstances if necessary. The prosecutor organizes own witnesses. THE EMPLOYEE/ACCUSED: With the assistance of a shop steward, he or she presents and defends his or her case, cross-examines the prosecutor s witnesses, pleads guilty or not guilty and presents mitigating circumstances if necessary. THE SHOP STEWARD: Assists the accused to cross-examine the prosecutor s witnesses and can plead on behalf of the employee as well as add mitigating factors on behalf of the employee. No legal representatives shall partake in an internal disciplinary enquiry. In the event the prosecutor also happens to be the source of the complaint, the ER office must be informed at least two days before the enquiry in order to facilitate the nomination of an alternative prosecutor. In such instances, the role of a complainant shall take precedence over that of a prosecutor. 2.7 ALTERNATIVE SANCTIONS TO DISMISSAL The enquiry chairperson shall consider the following alternatives to dismissal: A. Suspension without pay Suspension of an employee without pay as a disciplinary measure is a serious punitive step and should be considered only if the following circumstances prevail: Sufficient evidence to warrant dismissal has been established through a formal disciplinary enquiry; The reason for dismissal is not the accumulation of a number of minor offences/misdemeanors; Mitigating circumstances are present which suggest that leniency should be considered (for example, an employee with long service who has committed a serious breach of discipline and is about to retire in the near future); The employee or employee representative requests that alternatives to dismissal be sought and such a request is satisfactorily substantiated; B. Demotions The employee gives his written consent to such suspension; and The reason for serious discipline is not chronic absenteeism, assault, intimidation, theft or fraud. Demotions should only be considered if the following circumstances prevail: Where an employee after a recent promotion to a new position has received the necessary training, coaching and time to become accustomed to the position but fails to perform against established standards of performance (i.e. promotion beyond an individual s level of competence); The employee has been counselled on a number of occasions regarding the gap between the standard required and the level of performance; The employee, employee representative and union (if applicable) agree without any pressure that this is an appropriate measure; Page 7 of 12

8 The employee is not a probationer. The circumstances of each case should be considered and the following points taken into account: C. Fines (Financial Penalty) the gap between skills and experience required by the job; skills and experience of the incumbent entering the position; time-period stated/allowed by the Vaal University of Technology for the employee to reach proficiency in the new position; and training and customization required. May not be levied against an employee for disciplinary purposes, in terms of Basic Conditions of Employment Act (Act 75 of 1997). Notwithstanding this provision, the VUT reserves the right to recover financial damages incurred as a result of misconduct. D. Validity of Sanctions Written warnings will remain valid for a maximum period of 6 months and final written warnings for a maximum period of 12 months. After the warning has expired it will no longer count against the employee for the purposes of further discipline but will be taken into consideration when determining the pattern of misconduct of a habitual offender. 2.8 Guidelines for the Disciplinary Hearing See Annexure E 2.9 The Incapacity Counselling Procedure (Move to Incapacity Policy as would be developed) The employee and the immediate superior must agree in advance on the contract of service delivery as per Performance Management System (PMS) requirements as follows: Review of standards The employee s job content and standards should be reviewed. The reasonableness of those standards should be confirmed and, if possible, agreed with the employee. Records from PMS should be taken into consideration in this respect. Identify sub-standard performance The manager should identify shortfalls in the performance using the most objective measurement criteria available. These should be discussed with the employee Identify reasons for sub-standard performance Reasons why the employee has fallen below the standards should be discussed and identified Action plan In the event the reason(s) for the poor performance lies with the employee, the manager should counsel the employee on how to achieve the standards and agree on an action plan. Agreement should also be sought from the employee that the action plan is acceptable and that he or she is capable of achieving the required standards if the action plan is complied with Assistance Thereafter, the manager should provide all reasonable assistance, which may include suitable training of the employee to enable him/her to achieve the required standards. In the case of physical incapability, the assistance may include reasonable time off for medical treatment or temporary transfer to a less onerous job Review dates The employee should be given sufficient time to improve and review dates should be established to monitor progress. Page 8 of 12

9 Record of counseling The contents of the counseling and the agreed action plan should be recorded in a written memorandum to the employee in the form of the Counseling Record (Annexure A). It should be signed by the supervisor or manager concerned as a record to which the parties may refer at a later stage if necessary. The memorandum could also provide proof of counseling When it is considered that an employee s performance is not measuring up to the required standard, the manager concerned should engage in a process of counseling the employee concerning his or her physical inability or perceived incompetence. There is no need for an employee to be represented by a shop steward or a fellow employee at this stage. Representation will only be appropriate when a formal enquiry is convened Further counseling and warnings In the event the employee does not meet the required standards within the time periods set, the manager should engage in further counseling if it is believed that the employee may still be capable of improving given further assistance and time. The manager should also warn the employee that his or her services may be terminated if he or she fails to perform to the required standards by the end of the time period set Enquiry and termination Should it happen that after further counselling or a warning, the employee still does not perform to the required standards, or proves to the satisfaction of the manager that he or she is incapable of achieving the standards; the manager should convene an enquiry to consider the case. The chairman of the enquiry should be neutral and objective. A colleague or shop steward of his or her choice may represent the employee. After hearing the case, the chairman may decide to take whatever steps he or she considers appropriate which may include termination of the services of the employee on the grounds of incapacity/non-performance APPEAL (Incapacity cases) The employee and the employer have a right to have the findings of the enquiry reconsidered by a member of the next level of management. The right of appeal must be exercised within reasonable time from the date of the outcome of the enquiry and must clearly state the grounds of the appeal. The chairman of the appeal must confirm, set aside or vary the decision of the main enquiry. See Annexure D Payment on termination In the event an employee s contract of employment is terminated on the grounds of incapacity, it is appropriate to pay the required contractual notice Incapacity due to ill-health will be handled in terms of the applicable provisions of the Unemployment Insurance Fund and Retirement Fund rules Operational Requirements (Incorporate into the Redundancy Policy): The employer must consider the following before dismissing an employee and in accordance with the Redundancy Policy; Ways and means to avoid the anticipated dismissal. Ways to minimise the number of affected employees. Measures to change the timing of the dismissals. Measures to minimise the adverse effects of the dismissals. Selection criteria for the affected employees and severance pay. Page 9 of 12

10 2.11 Desertion Procedure Typically desertion is characterized by the unauthorised absence of an employee for a period of time normally exceeding 4 to 5 working days without any report or communication of any sort from the employee, and no reasonable explanation available in respect of the absence of the employee. See Annexure F for guidelines. 3. GRIEVANCE PROCEDURE Definition A grievance is any feeling of dissatisfaction, injustice or unfair treatment an employee may experience in relation to their employment with the Vaal University of Technology and which has not been resolved informally. 3.1 GENERAL PRINCIPLES Any employee who has a grievance is entitled to make use of the grievance procedure. The purpose of the grievance procedure is to enable employees to have their grievances resolved fairly quickly and as close to the point of origin as possible Employees may lodge grievances without fear of victimization. The Vaal University of Technology assures employees that they will not be prejudiced in any way as a result of using the procedure Any employee lodging a grievance in terms of this procedure is entitled to representation by an employee representative or shop steward, provided that such person agrees to represent the employee. The Vaal University of Technology guarantees that all substantiated grievances brought to its attention by employees will be dealt with professionally, timeously and in great confidence. There shall be only two stages in grievance procedure. This procedure may not be invoked as a result of any disciplinary action taken in accordance with the Vaal University of Technology s disciplinary code. 3.2 STAGES IN GRIEVANCE PROCEDURE INDIVIDUAL GRIEVANCE Stage 1 - Lodging of a complaint Anyone, a fellow employee, a member of management or supervisor, a student or a client of the Vaal University of Technology can normally lodge a complaint. This can either be verbal or in writing to the supervisor or management who should further investigate the matter to unearth facts. Such a complaint must be investigated and evaluated in order to establish whether there is any substance in it. The purpose is not to make a finding of guilt or innocence. An employee with a grievance should (other than the grievance related directly to his immediate supervisor) first report the grievance to his immediate supervisor/manager in writing (using grievance form 1) See Annexure G. The employee may, accompanied by the employee representative approach the immediate supervisor/manager, who shall make a further attempt to resolve the grievance. It must be understood that this process is designed to give the supervisor/manager every opportunity to resolve the issue. The supervisor/manager must endeavour to resolve the grievance and communicate the Page 10 of 12

11 outcome in writing to the employee within three working days, using form 2. Annexure H). (See In the event of the grievance not being resolved to the satisfaction of the employee within three working days, or in the event of the grievance relating directly to his immediate supervisor/manager, the employee may refer the grievance directly to the manager s superior (next level of management Stage 2 - Next level The employee must invoke Stage 2 timeously and preferably within 2 days of having received a response from the supervisor/manager in respect of Stage 1. The same applies if the grievance is directly referred to the next line of management. (See stage 1 above). The manager shall be required to provide a written response to the grievance on Form 3. (See Annexure I). If the grievance is not settled to the satisfaction of the employee within three working days, Stage 3 shall be invoked i.e. the union/employee must formally declare a dispute with the Vaal University of Technology and refer the matter to CCMA COLLECTIVE GRIEVANCE In the event a group of employees either within the same or different Faculties/Departments raises a collective grievance, the following procedure will apply: The aggrieved employees will appoint a representative or spokesperson to submit their collective grievance to the IR office. The ER office will appoint a committee consisting of line managers and shop stewards to address such grievances. Should the grievance remain unresolved after the committee attempted to resolve it, the shop stewards will be entitled to declare a dispute with the IR office GRIEVANCE RESOLUTION GUIDELINES In resolving grievances it is critical to remember that the purpose of the discussion is to discover and remove employee dissatisfaction. The following could be used as a checklist by supervisors/managers. (a) Preparation and investigation Ensure privacy and no interruptions during discussion of the grievance. Ask what the employee believes is causing the dissatisfaction. Ask what the employee believes needs to be done to resolve the situation. Identify other opportunities and put them to the employer. Attempt to agree next steps. Endeavour to establish the circumstances causing dissatisfaction (particularly attitudes, feelings). Inform the employee what avenues you will be following to resolve the grievance (allow him to accompany you if this is possible). Consult with people concerned, check previous records/history. Be aware of Vaal University of Technology policy, which may suggest action to be taken. Page 11 of 12

12 Allow adequate time for discussions (this will show the employee you are serious above resolving his problem). (b) Guidelines on Problem Solving OPENING THE MEETING Greet the employee as you usually do; Assess whether the person is nervous or anxious and put him/her at ease if necessary. Get right to the point and state the problem as you understand it. FOCUS ON THE PROBLEM, NOT A PERSON Find out what the real problem is and what settlement is desired by the person; Get employees ideas and then give yours; Ask open questions starting with What? When? Where? Who? How much? How often? Why? Get all the details e.g. witnesses, and make notes; Summarize the main problem; Detail actual and potential obstacles to resolving the grievance. APPROACHING THE SOLUTION Ask for suggestions in resolving the problem; Make some of your own suggestions; Evaluate both suggestions and decide on the best solution. AN ACTION PLAN State in very specific terms the action plan with a follow-up date to establish whether the grievance has been resolved. CLOSE THE MEETING FORMALLY Thank person for his input; Close with a positive comment. Effective problem solving takes place only when the manager listens carefully, does not judge in an over-hasty manner and makes suggestions rather than conclusive statements. /ps/approved at Council on 24 November 2003 Page 12 of 12