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Follow these five rules for discipline and dismissal to be substantively fair

by , 22 April 2015
If you want your discipline and dismissal to be fair, it must be substantively fair. You don't want to make any mistake in this process. But how can you check your decisions and procedure in order to make sure you don't have the wrong arguments supporting your final word?

For a good decision, here's what you should ask yourself:

1.  Is there a rule or standard regulating conduct in or of relevance to, the workplace?

2.  Did the employee contravene the rule or standard?
3.  Was the employee aware of the rule or standard? Or could you reasonably expect him to have been aware of the rule or standard?
4.  Did you apply the rule or standard consistently?
5.  Was dismissal an appropriate sanction for breaking your rule or standard?

And now, let's look at each of these questions individually.

1. Is there a rule or standard regulating conduct in or of relevance to, the workplace?

Check the following documents to make sure the rule exists:

•  Your disciplinary codes or rules of conduct;
•  Your employee's employment contracts;
•  Your policy or personnel manuals;
•  Notices you put on notice boards and other areas;
•  Certain legislation. For example, the Mine Health and Safety Act or the Occupational Health and Safety Act; and
•  Common-law principles of contract.

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2.  Did the employee contravene the rule or standard?

Your answer can be given after you look at the facts of each matter and you present them to the chairperson of the disciplinary enquiry. This will prove the employee disobeyed your rule.

You only have to prove the facts on a balance of probabilities. This means it mustn't just be possible that the employee committed the offence, but probable that he did. The chairperson will only make this decision after he looks at all the facts at the enquiry.

3.  Was the employee aware of the rule or standard? Or could you reasonably expect him to have been aware of the rule or standard?

If the employee doesn't know a rule, how can he be find guilty for breaking it? In this case, a written disciplinary code is the best proof that your rule exists. But, you must show you made the disciplinary code available to employees, and they're aware of what's in it.

4.  Did you apply the rule or standard consistently?

There are two types of inconsistency you mustn't be guilty of. They are:

1. Historical inconsistency.

This looks at past practice. For example, you didn't take action against employees who broke a particular rule. But then take disciplinary action against employees without telling them you're going to do so for this rule.

Warning: If you don't stick to your rules, employees will think it isn't valid or reasonable.

But this doesn't mean you can't enforce these rules. You just have to give employees appropriate notice that you'll enforce the rule. If you do, you'll be able to take the necessary action.

2. Contemporaneous inconsistency.

By this we mean when you treat employees differently even though they commit the same or similar offences. It also refers to the situation when you discipline employees, but give them different penalties. Note that you must treat similar cases in the same way.

5.  Was dismissal an appropriate sanction for breaking your rule or standard?

Finally, you can only decide if dismissal's appropriate by looking at all aspects of the misconduct. So, the chairperson will look at the following issues:

• Mitigating circumstances of the misconduct. Just because a transgression is serious, it doesn't mean it warrants dismissal. There may be circumstances which impact what the penalty should be. For example, provocation or self-defence, if you charge an employee with assault.

• Aggravating circumstances may justify dismissal. For example, where the accused is a supervisor or manager, etc.

• Nature of the employee's job. For example:

–  The nature of the employee's undertaking, and the position he holds, may be relevant.
–  In the security industry, dishonesty related offences, justify dismissal.

• Long service. This normally counts in favour of the employee. But in certain circumstances, it may aggravate the situation. Because you trust the employee more.

• Employee's status. Often, if an employee is an ordinary worker, it counts in his favour. You expect your supervisors and managers to behave more responsibly.

• Disciplinary record. You can't look at other warnings for offences that aren't the same as what you're currently charging him for. But there may be times where you can. You can look at an accumulation of offences, instead of offences of a similar nature.




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