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5 actions you simply CAN'T discipline

by , 19 April 2016
You'll more than likely have certain standards of conduct which you expect your employees to follow as they carry out their workplace activities. And if they were to break any of those standards, you would discipline them accordingly.

Yes, discipline is an important workplace factor as it helps to ensure a harmonious working environment in which all employees can function at their best. But it's worth noting that not all behaviour can be viewed as breaking your rules.

That's right, certain actions simply can't, by law, qualify as disciplinable misconduct! Here are 5 actions that don't qualify as disciplinable misconduct...

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Fact: The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
 
And if you didn't do it fairly, you could have to pay him up to 12 months' salary!
 
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Action#1: Reporting you to the authorities

You can't discipline an employee for reporting your actions to the relevant authorities.

For example, if an employee notices that you are conducting illegal activities behind the scenes, and reports you, you can't discipline him at all.

Action#2: Lodging a grievance

Employees who lodge a grievance with your management or HR department can't be disciplined for it, regardless of your beliefs around the grievance.

Action#3: Refusing to carry out an unlawful or unfair instruction

This is obvious! You can't tell an employee to do something illegal, and expect him to listen to you.

If he refuses, you can't discipline him at all.

NOTE: An employee may, in certain situations, even refuse an instruction which is reasonable! For example, if you give an employee an instruction which, according to the employee's knowledge and experience, will put him in unnecessary danger, he may refuse to obey it, and you won't be able to discipline him. If you do, for example, dismiss him for it, it could very well be unfair.

This has been shown in the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861).

Action#4: Taking you to the CCMA

You can't discipline an employee for referring a dispute with you to the CCMA.

Action#5: Emotional response to abuse by management

You may not discipline an employee who responds emotionally to abuse by workplace management.
 
*Those were 5 actions you won't be allowed to discipline in the workplace.

To learn what actions you can discipline, take a look at our sample disciplinary policy in Chapter D 02 in your Labour Law for Managers handbook, or click here if you don't already have it. 


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