Disciplinary Action
Related Legislation:
Employment and Industrial Relations Act, 2002
1. How many warnings have to be given before an employer can terminate employment?
The law does not specify the number of warnings that have to be given before an employer can terminate employment. Nevertheless it is custom and practice that three warnings are given before dismissal. This has to be treated with caution, since there is no reference in any legislation to this and collective agreements may stipulate otherwise.
An offense can be serious enough to merit instant dismissal (e.g. fighting at the workplace). On the other hand, three warnings might be insufficient to justify dismissal in front of an Industrial Tribunal if:
- they are issued for frivolous reasons
- there is a large span of time between one warning and another (e.g. ten years have lapsed between the second and last warning)
- they are given within such a short time span as to give indication that there are grounds for claiming a ‘constructive dismissal’. For example, an employee who has been with the company for ten years without any warnings whatsoever and is given three warnings within two days for minor offences. Some collective agreements specify ‘expiry dates’ for warnings, following which they will no longer count for the purpose of accumulation of warnings. However, management can still present such warnings as proof of past unsatisfactory performance in front of an Industrial Tribunal.
The above shows that management has to exercise judgment in issuing warnings, and also in using such warnings to dismiss employees for disciplinary reasons. The lack of hard and fast rules enables management to use discretion to be fair to employees and also to safeguard the interests of the company.
2. Is a verbal warning legit?
The Employment and Industrial Relations Act does not regulate disciplinary action. Nevertheless the Industrial Tribunal has stipulated time and time again that if a warning has to be given then it should be done in writing and it should make it clear that if the situation is not going to improve itself or if the incident is going to repeat itself then the employee’s might face further disciplinary action which could lead to dismissal.
3. Can repeated verbal warnings lead to dismissal?
As mentioned in Question 2 of this chapter warnings are done in writing. If the employee has already been given verbal warnings then the first time a written warning is given, reference is made to the previous verbal warnings. By giving verbal and not written warnings it would be more difficult for the employer to present a credible case in front of an Industrial Tribunal or disciplinary board if there are no records of written warnings. Remember the latin dictum ‘verba volant scripta manet’ which loosely translated means ‘words are superfluous whilst the written word has permanence’.
4. Is a dismissed employee entitled to notice period?
Article 36 of the Employment and Industrial Relations Act clearly states that employees who are dismissed for good and sufficient cause are not entitled to notice periods.
5. Must a warning be preceded by a charge and a hearing?
Companies that are covered by a collective agreement normally have clauses that specify the procedures to be followed in cases of discipline. These frequently stipulate the process of issuing charges and organizing hearings, at times in front of a disciplinary board.
Note: where there are collective agreements in force, ensure that the disciplinary procedure is followed to the letter. It is a common strategy for unions to try to acquit employees of disciplinary actions by finding variances between the procedure adopted and the one specified in the collective agreement.
Non-unionised companies have the option of setting their own procedure, usually as part of an overall systems and procedure manual. There is no legal obligation to issue a charge or to organize a hearing to issue a warning. However, giving an employee a chance to express his/her position before the decision to proceed with disciplinary measures is taken contributes to the company’s sense of fairness and credibility.
Note: employees have to be informed if a warning is issued.
6. Is there a procedure for an appeal of a warning?
This also depends on the provisions contained in a collective agreement or the employees’ manual, where available. There is no automatic right of appeal to a warning once it is issued.
7. Does the employee have an automatic right to reply to a warning in writing?
There is nothing that prohibits an employee from expressing his/her objections to a warning once it is issued, and such objections can be made in writing. However, any such objections do not invalidate the warning.
8. Can an employer suspend an employee pending investigation of a disciplinary case?
Refer to Question 9 for payment during suspension. Article 19 (4) of the Employment and Industrial Relations Act states that suspension on reduced pay or on no pay constitutes a deduction in pay and unless stipulated in a Collective Agreement amounts to a fine which can only be actioned if authorized by the Director General of the Department of Industrial and Employment Relations.
9. Is the employee paid during such suspension period?
Whether an employee is paid or not during suspension is normally specified in collective agreements. There are Collective Agreements which allow for suspension without pau or on half pay. In companies where there is no collective agreement then the suspension period has to be paid. Article 19 (4) of the Employment and Industrial Relations Act states that suspension on reduced pay or on no pay constitutes a deduction in pay and unless stipulated in a Collective Agreement amounts to a fine which can only be actioned if authorized by the Director General of the Department of Industrial and Employment Relations.
10. For how long can an employee be suspended?
In those companies where there is a collective agreement there is normally no limit for the duration of suspension, as long as this is seen to be necessary for the investigations to be carried out objectively and professionally. All efforts must be made to make the suspension period as brief as possible especially if the employee under investigation is not fully paid or not paid at all during this period.
11. Can a disciplinary action include unpaid suspension?
A period of unpaid suspension can be used as a disciplinary action in cases of serious offences only where collective agreements provide for an unpaid suspension, or if authorized by the Director General of the Industrial and Employment Relations.
12. Are there specific guidelines to the setting up of a disciplinary board?
- The law does not set a model of disciplinary boards, and companies are not obliged to set up such boards unless specified in collective agreements or employee manuals.
- The composition of disciplinary boards varies between companies. A common practice is to organize a board consisting of an independent chairperson, a management representative and an employee representative. However, in many cases, the board may consist of just an independent person to adjudicate the case.
- The terms of reference of a disciplinary board can vary. In some cases, the board can be asked to determine whether there are sufficient grounds for disciplinary action for the case in question. In others, the board can also determine or recommend the nature of the disciplinary action, if the employee/s is/are found guilty of an offence. The terms of reference should be made clear to the board before any hearings are held.
13. Is management bound to accept the decision of a disciplinary board?
Management is not bound to accept the board’s decision or recommendation. However, decisions taken by disciplinary boards carry a lot of weight in Industrial Tribunal decisions. This should be specified in the terms of reference set for the Disciplinary Board.
14. What are the benefits of setting up a disciplinary board?
The Employment and Industrial Relations act does not state that there is an obligation on employers to set up such a board. However not only will a company benefit from having an objective and fair investigation and hearing of a case before passing judgment and taking action but would also satisfy the audi alteram partem principle where the employee is given the opportunity to reply to the charges brought against him/her and to try and justify their actions.
15. Does an offer of voluntary resignation compromise the employers’ position if the case is submitted in front of an industrial tribunal?
Technically, when an employee offers voluntary resignation, he/she cannot refer the case to an Industrial Tribunal to claim unfair dismissal. However, the person can claim forced resignation. Ideally, the offer to resign should come from the employee, and not be proposed by the employer as this will amount to a constructive dismissal.
In cases of voluntary resignation instead of dismissal, the employee should sign a declaration that the last payment issued by the company is in full and final settlement to any claims that the employee may have against the company.
16. Does a warning have to be signed by an employee?
Companies can adopt a procedure that asks employees to sign a written warning. However, this is to be taken as confirmation that the warning has been received by the employee.
Refusal to sign does not invalidate the warning, unless so specified in a collective agreement. Likewise, the signing of a written warning does not automatically imply acceptance of its contents by the employee.
17. Is there a maximum time limit for which a warning can remain in a person’s file?
There are no references in the law for expiry dates for written warnings. Some collective agreements do have such provisions (see Q.1) It is generally accepted, however, that the weighting of a written warning diminishes with time, unless it is specified that the warning in question is a final warning.
18. Can a disciplinary action take the form of a demotion?
A disciplinary action can take the form of a demotion. An employee can be demoted as a result of a disciplinary measure. Ideally such action is only recommendable in cases where the nature of the offence implies incompetence or lack of trust in fulfilling the duties related to a particular post.
19. Is there a time limit that management can take disciplinary action following an offense?
Management can start disciplinary procedures and take disciplinary actions once an offence is brought to attention, irrespective of the time period that has elapsed. There are cases of collective agreements that specify a time limit between the time when management came to know about an offence and the date when a notice of charge is issued.
It is advisable to act on an offense immediately it is brought to management’s attention in order to avoid complications. Communication between different management levels and departments is important to this effect.
