Many commissioners and even judges sanction the use of the word ‘sanction’ when employers sanction employees for breaching standards, or dismiss them for a reason regarded as fair.
“Sanction has two nearly opposite meanings: to sanction can be to approve of something, but it can also mean to punish, or speak harshly to. Likewise, a sanction can be a punishment or approval. Very confusing––the person who invented this word should be publicly sanctioned!
See if you can guess the meaning of sanction in the following contexts. Before invading Iraq, the US and its allies first imposed sanctions on the country, refusing to supply the country with much-needed trade items. Did you guess sanction=punishment? You were right! But by trading with China at the same time, the US quietly sanctioned that nation’s known instances of human rights abuses. Did you guess sanction=approval? You’re right again!”
Examples
As a noun sanction means “the act of punishing” with synonyms: penalisation, penalization, penalty, punishment
As a verb sanction means “impose a penalty on; inflict punishment on” with synonyms: penalise, penalize, punish
Reference source: Sanction: Vocabulary.com accessed 28/12/2016
Excerpts from an earlier Comment on GilesFiles
A subscriber has posed the following query and I have responded to it.
“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.
My earlier response
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.
“Management has decided to termination your employment, on notice. We are satisfied that the reason for dismissal is related to your conduct and is valid. The reason is also regarded as fair. We are satisfied that you have made further employment intolerable, after considering all relevant circumstances. Further or alternatively you have destroyed, or seriously damaged, the necessary relationship of trust and confidence”.
Note: If management is completely satisfied that the conduct was ‘gross’ the termination would be summary [without notice]. An example would be gross dishonesty. But a right to be heard first is always required even if the conduct is alleged to be gross.
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 or performance 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.
Avoid doing 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:
“Sanctions, in law and legal definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines”.