DISCIPLINARY CODE & PROCEDURE

Transcription

1 Page 1 of 5 DISCIPLINARY CODE & PROCEDURE DISCIPLINARY CODE It is specifically recorded that this document, or anything contained therein, is not a term or condition of any employment contract. All legal rights are specifically reserved even if not referred to herein. PURPOSES & OBJECTS The main purpose of the Employer is to advance the interests of its undertaking whilst having due regard to the interests of all stakeholders. The main purpose of this Code is to fulfil its objects, which are: 1. to engender a culture of care and mutual respect for oneself, fellow employees, work, teamwork, customers and other persons associated with the undertaking and the environment; 2. to ensure that all employees are treated in a fair and consistent manner within the general framework of the law, the principles of fairness, natural justice and accepted fair employment practices; 3. to give effect to and regulate the fundamental rights conferred by the Constitution, more particularly section 23, and applicable legislation affecting the employment relationship; 4. to provide a framework within which Management and employees can work together to maintain acceptable levels of behaviour and conduct; and 5. to promote the effective resolution of all disputes. STANDARDS OF PERFORMANCE AND BEHAVIOUR Management sets acceptable standards of performance and behaviour from time to time and must be able to trust and have confidence in each and every employee to achieve them. Apart from exceptional circumstances Management will correct poor work performance and minor unacceptable behaviour through counselling and warnings to ensure that each employee knows and understands what is expected by Management. TERMINATION OF EMPLOYMENT Management reserves all its rights at law to terminate employment for any cause recognised by law as sufficient, including, but not limited to, a reason based on the operational requirements of the undertaking. Acting in the best interests of the undertaking, and after following a fair procedure, Management will be forced to terminate employment if satisfied on clear and convincing evidence that there is a fair reason for doing so related to the conduct or performance or capacity of the employee. A fair reason will usually be present if there has been a breach of good faith [in the sense of a breach of the obligation of trust and confidence ], or that a proper employment relationship has been destroyed or seriously damaged, or that it is in the best interests of the undertaking to do so. Where the reason for termination is related to serious or gross misconduct [in the sense of a fundamental or material breach of the employment contract] no payment will be made to an employee. In all other situations management will consider paying to an employee an amount instead of reasonable notice and a severance benefit when terminating employment.

2 Page 2 of 5 SCHEDULE OF GROSS MISCONDUCT & UNACCEPTABLE BEHAVIOUR READ WITH EMPLOYMENT PRIVILEGES & RESPONSIBILITIES that may provide a fair reason to terminate employment if it seriously damages or destroys the good faith requirement in the employment relationship Note: Item 3(1) of the Code of Good Practice: Dismissal [schedule 8 to the LRA] specifically provides that Some rules or standards may be so well established and known that it is not necessary to communicate them. Gross Misconduct Conduct endangering the lives, health and safety of anyone, including but not limited to any kind of serious harassment. Wilful damage to any property. Dishonesty including, but not limited to, theft; unauthorized possession of property; falsification of documents, including but not limited to employment applications and business records; accepting secret commissions or unauthorized payments. Misuse of drugs, alcohol and other habitforming substances. Violent, reckless or negligent behaviour. Off-duty illegal or unlawful misconduct that adversely impacts on the job. Concerted activity contrary to any contract or the law, such as unprotected coercive industrial action of any kind, including, but not limited to, striking, picketing, demonstrating, boycotting or protesting. Additional unacceptable behaviour Conduct that is obscene, immoral or offensive, including but not limited to sexual harassment and the use of racist or foul language or rudeness to anyone, including fellow employees, clients, suppliers and other persons having any dealings with the undertaking. Disloyalty. Persistent absenteeism without leave or tardiness. Insubordination. Sleeping on the job. Off-duty conduct that adversely impacts on the job. Neglecting to discharge duties. Failing to devote appropriate time and attention to duties. Being declared provisionally or finally insolvent or effecting or attempting to effect a general compromise with some or all creditors. Unauthorised possession of any firearm or dangerous weapon.

3 Page 3 of 5 DISCIPLINARY PROCEDURE Management is responsible for maintaining discipline and will do so in terms hereof. Apart from exceptional circumstances, and subject to any relevant laws, the Management will enforce all standards and rules in the manner set out below. Document 14 contains guide-lines to assist management when applying discipline in the workplace. STAGE I: PRELIMINARY INVESTIGATION Upon receipt of any complaint or grievance from anyone or knowledge of any incident involving an employee Management will cause a thorough preliminary investigation to be conducted by one or more responsible persons. On receipt of a full report, not necessarily in writing and where applicable including signed statements by persons concerned in the matter. Management will determine whether there are reasonable grounds to continue the investigation given the need to take corrective measures, including but not limited to, termination of employment. STAGE II: FURTHER INVESTIGATION OPPORTUNITY TO BE HEARD If it is decided to proceed Management will: (1) appoint, and specifically delegate authority, to one or more responsible members of Management [the responsible person ] to take a final decision in the matter; (2) require the responsible person to arrange for the preparation of allegations [in the sense of a formal statement of a factual matter as being true or provable, without its yet having been proved]; (3) require the responsible person to fix a place, date and time for the investigation to continue, including but not limited to, affording the employee the opportunity to state a case in response to the allegations, bearing in mind the need for a reasonable time for preparation by the employee concerned; (4) require the responsible person to inform the employee in a written notice - (a) of the allegations, as described above, in a form and language reasonably understandable to the employee, taking particular care not to defame, impair the dignity nor invade the privacy of anyone; (b) that the matter is serious and may result in termination of employment; (b) of the place, date and time when the employee will be allowed the opportunity to - (i) state a case in response to the allegations; (ii) produce any other relevant information; (iii) call witnesses; (iv) be assisted by a fellow employee or any other person, but within reason; and (iv) bring to the attention of Management any other relevant information; (c) that the investigation will proceed in the absence of the employee if there is a refusal or failure to use that opportunity for the intended purpose, but that any representations received before the conclusion of the investigation will be considered before any final decision is taken; (5) require the responsible person to ensure that the employee concerned, is allowed in the manner described above, to state a case in response to the allegations and to call witnesses for that purpose. [see Document 15] STAGE III: CONSIDERATION OF FACTS & PROVISIONAL DECISION At the conclusion of Stage II the responsible person will adjourn for a short while and consider the case as stated by the employee in response to the allegations and decide provisionally whether there is sufficient clear and convincing evidence that might require measures to be taken to correct the employee's behaviour; or termination of employment.

4 Page 4 of 5 STAGE IV: RESUMPTION CONSIDER EMPLOYEE S CIRCUMSTANCES If the responsible person decides to proceed, and as part of the ongoing investigation, the employee will be allowed to call additional witnesses and produce any further relevant information that might affect any final decision(s) regarding continued employment, including, but not limited to, personal and mitigating circumstances and the past record. The responsible person will then adjourn, either for a short while or until a day or so later, depending on the circumstances. STAGE V: DECISION ON CONTINUED EMPLOYMENT GOOD FAITH After the conclusion of the Stage IV the responsible person will consider all the relevant circumstances, including but not limited to, the facts found to have been proved or not disputed; any further relevant information provided by the employee or anyone else; the employee's personal circumstances and past record, including but not limited to any mitigating or aggravating circumstances; whether the employee s conduct or performance has without reasonable cause had the effect of severely damaging or destroying the necessary employment relationship of good faith [in the sense of trust and confidence ]; and the need to terminate employment or the suitability of a suspension, with or without payment, or warnings, including but not limited to verbal, written or final, and the applicable period thereof. The responsible person will then decide which of the following courses of disciplinary action, if any, needs to be taken. If it decided to implement any form of disciplinary measure short of dismissal, the responsible person will proceed to Stage VI. If there is clear and convincing evidence of gross misconduct proceed to Stage VII. If it is decided, despite the absence of gross misconduct, that the relationship of trust and confidence has been destroyed proceed to Stage VIII. STAGE VI: DISCIPLINARY ACTION SHORT OF DISMISSAL The responsible person will consider what action needs to be taken, such as a caution, an informal, written or final warning or even a suspension with or without pay. Any final written warning should resemble Document 17. STAGE VII: TERMINATION WITHOUT NOTICE [GROSS MISCONDUCT] If the responsible person decides that it is necessary to terminate employment because of the employee s gross or serious misconduct, employment will be terminated summarily [without notice or any payment instead thereof and without payment of any form of severance benefit]. Note: Provided the termination results from the employee s gross misconduct, the law allows the employer to terminate the contract without notice or payment instead thereof. In such event proceed to Stage IX. STAGE VIII: CONSULTATIONS RE SETTLEMENT AGREEMENT As part of the ongoing investigation, the responsible person will consult the employee with a view to reaching consensus on the payment of an amount instead of reasonable notice or instead of a severance benefit, or both, and endeavour to finally resolve the entire matter mutually in an agreement resembling Document 18. STAGE IX: NOTICE OF TERMINATION AND CERTIFICATE OF SERVICE Except where termination is by mutual agreement [see Stage VIII] the responsible person must ensure that a notice of termination and a certificate of service are prepared, signed and delivered to the employee concerned together with any amounts due and payable to the employee concerned.

5 Page 5 of 5 Those documents should resemble Documents 19 & 20. -ooo-