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A subscriber has posed the following query and I have responded to it.
Query
You question the use of the word ‘sanction’ and state ‘It suggests a power to punish when that is not the function of managers.’ You then go on to say, ‘Hopefully the use of the word ‘sanction’ will fall away over time.’
I agree that we need to move away from criminal terminology. ‘Charges’ has started to give way to ‘accusations’ or ‘allegations’ and ‘prosecutor’ to ‘initiator’ (or simply ‘employer’).
But as far as ‘sanction’ goes, it appears that no alternative has been suggested or is in common use. ‘Guilt’ and ‘innocence’ are also without useful alternatives and will, therefore, continue as useful shorthand.
On the other hand, I’m not sure that sanction ‘suggests a power to punish’. It might be inferred, but that would be invalid as a general meaning. In the sense that it means ‘to impose a penalty’, it also has the benign meaning of imposing the consequences of the employee’s action. Consequences, therefore, might be an alternative, but it doesn’t quite fit in my view.
Graham’s response to the query
In a nutshell
Employers have no inherent right to ‘sanction’ anyone, because they do not exercise any power of the State or higher authority. Whilst employers do have a prerogative to maintain standards, in the interests of the enterprise, they operate contractually on the same level as employees.
It is unnecessary for employers to use ‘sanction’ when the law does not require it. They also risk creating animosity by ‘suggesting’ that an employee has done something unlawful in the nature of a crime.
Employers should use language referring to facts and the adverse consequences of such ‘conduct’. After complying with a fair procedure employers need to make two simple decisions, concerning validity and fairness. Suggested wording in place of sanction.
Note: If management is completely satisfied that the conduct was ‘gross’ the termination would be summary [without notice]. An example would be gross dishonesty.
Discussion
The word sanction is not used in the LRA. It seems that in the early days it was used because it was incorrectly assumed that employers had to prove ‘fault’ or ‘guilt’ to dismiss. As we know the LRA only requires a reason related to conduct (not misconduct) so fault does not have to be proved.
What is important is whether the reason for dismissal is:
• valid [conduct related[
• fair [impacts adversely on the employment relationship].
So employers must prove the validity and the fairness of the reason; although the LAC has now confirmed that in some instances of gross misconduct a ‘fair reason’ is implied without any proof from employers. An example would be gross dishonesty.
Employers do not need to use ‘sanction’. They should simply investigate ‘conduct’ issues and establish the facts on a preliminary basis.
The employee must be:
• informed of those factual allegations/averments; and
• allowed to respond, either in writing or in a meeting [what is generally referred to as a ‘hearing’]
The employer continues with the process and considers all relevant factors, such as earlier warnings, and decides what action needs to be taken to maintain its reasonable standards of behaviour and performance. Progressive disciplinary action needs to be adopted, but could also include dismissal in appropriate instances.
So there is no need to do what is done in criminal trials:
• first a finding of guilt [validity]; and
• then a sanction/punishment by a government official of a fine or imprisonment [fairness].
A Google search provided the following definition:
Reported
(2016) 37 ILJ 2831 (LAC)
Till operator dismissed for having excess funds in her till at the end of a given day.
[2017] 2 BLLR 137 (LAC)
BLLR headnote
Dismissal – Misconduct – Till discrepancies – Cashier repeatedly found with unaccounted cash or shortage in till while on final warning – Dismissal fair.