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Follow the code! But what if an employee commits an offence not included in it?

by , 24 September 2015
Your disciplinary code is a very important document in the workplace. It outlines the steps you'll take when an employee commits an act of misconduct.
By having a disciplinary code, you can maintain consistency when carrying out discipline.
If you don't stick to your disciplinary code, you run the risk of acting unfairly. And that won't look good in the eyes of the CCMA.
In other words, if you don't stick to your disciplinary code, the employee can claimyour entire disciplinary procedure was substantively and procedurally unfair. And if this happens, you could very well end up paying him out or reinstating him.

But then if that's the case, then what must you do if an employee commits an offence that your code doesn't cover?

Well, read on and find out.


Everything you need to know about substantively and procedurally fair disciplinary hearings
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
But not you! Here's why…
There can definitely be a time when an employee commits an act your disciplinary code doesn't cover.

What you'll need to do, is to deal with the matter in a consistent manner while using your disciplinary code as a GUIDE wherever you see it relevant. This is, of course, provided the employee was aware of, or could be reasonably expected to be aware of, the standard he acted against.

So, just because your disciplinary code doesn't list a particular offence doesn't really matter. Your employee can't expect to get away with it.

Also, just because your disciplinary code doesn't mention the most appropriate sanction for a particular action doesn't matter.
Use this information for  dealing with an offence you don't have in your disciplinary code.

It's also important to note that if you include your disciplinary code in your employment contracts, your employees can demand that you stick to it.

If you don't, it can be seen as a breach of contract and can possibly end up in your dismissal being unfair.

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