Disciplinary action involves the right of senior managers to enforce standards of conduct and performance in the best interests of the enterprise. In other words as specified in the LRA disciplinary action involves the right, and even the duty, to issue warnings, and even dismiss, employees for a valid and fair reason related to their conduct or capacity. But this does not mean that managers have the right to ‘punish’ employees. Only the criminal courts can punish persons after a proper investigation by the police and a fair trial where accused persons can defend themselves.
Disciplinary action is irrelevant when the reason for dismissal is based on the ‘operational requirements’ of the enterprise. But the LAC has correctly pointed out that senior management is not prevented from following the joint consensus-seeking statutory procedures in s 189 of the LRA, even when the reason for dismissal is related to conduct or capability. The LAC must be correct. The procedure is far more favourable to the employee than any disciplinary action. And because the reason for dismissal is based on operational requirements, the employer is obliged to pay severance pay, in addition to notice pay, in terms of s 41 of the BCEA.
When senior management thinks of ending employment, and assuming a fair procedure will be followed, it is necessary to consider:
- gross misconduct; or
- ‘operational requirements’ of the enterprise/business; or
- conduct or performance that is not gross but unacceptable.
#1 If the employee’s conduct is so bad or gross it could justify ending the employment relationship without notice pay. In other words there will be a valid and fair reason to dismiss related to (mis)conduct. The employer can no longer trust the employee and any further employment relationship would be intolerable.
#2 If there is a genuine reason based on the ‘operational requirements’ of the enterprise/business then the procedure in s 189 of the LRA has to be followed and notice pay and severance pay must be paid to the employee/s. There is no need to prove that the employee has done anything wrong.
#3 Even if the employee has not done anything ‘wrong’ it is still possible to dismiss for a valid and fair reason. This is where the concept of ‘progressive discipline‘ is relevant. It would not be fair to dismiss without warning the employee that the conduct or performance has damaged the employment relationship. In other words the relationship of trust or confidence has been seriously adversely affected and if the employee does anything further to destroy that relationship, it will be ended. If it is decided to end the relationship then notice pay, but not severance pay, must be paid to make the dismissal lawful and fair.
Summing up disciplinary action
Employers must always follow a fair procedure and consider and apply the principles of lawfulness and fairness in the:
- LRA – sections 185, 186, 187 and 189 and 189A;
- BCEA – sections 36, 37, 38, 40, 41 and 42; and
- the common law.
Employers must always pay notice pay, unless the reason for dismissal is gross misconduct.
If the reason is based on operational requirements severance pay must also be paid in terms of BCEA s 41 read with s 35.
“ In my view, there would be instances where a legitimate operational requirement exists, which would justify a dismissal on operational requirement [sic] and also a fair reason on the basis of which an employer may discipline the employee for misconduct which would lead to a dismissal. Such a scenario should give an employer a choice of procedure to follow. I am not aware of any provision that would compel the employer to follow a particular route. It should be permissible for the employer to opt for the use of operational requirement [sic] provided that it is not for improper motive and that the requirements of section 189 of the Act are met. Such an option may prove to be fair and advantageous to the employee. Whether the employer acted fairly or not would depend on the circumstances of a particular case”. [Emphasis added]
Your employer shouldn’t take any disciplinary action before meeting with you first and discussing the problem.
This disciplinary meeting (normally called a ‘hearing’) should be at a reasonable time and place.
At the hearing your employer should:
- explain the complaint against you
- go through the evidence
- give you a chance to tell your side of the story
If you raise a significant new fact or issue at the hearing your employer might stop it and look into the issue. They should then rearrange the hearing at a later date”.