NEWSLETTER – MAY 2005
The right of the employer to discipline an employee is the basis upon which the employer–employee relationship exists. The objective is to ensure that employers are able to efficiently and effectively meet the goals of the company.
There are different types of disciplinary measures that an employer can impose depending on the circumstances or gravity of the offence. It must be noted that dismissal is the last resort and the employee must be given a reasonable opportunity to correct his misconduct. There are different methods that an employer can use to discipline an employee.
1. General warnings
This usually occurs where the employer calls all employees and set out a standard that is required and what form of disciplinary action would be taken against the employee if there were a transgression of the rule.
2. Specific warnings
It is normally given at the first stage of the transgression. The intention is to remind the employee that he/she has transgressed a rule. It is usually formal and done orally. The purpose of this is corrective as is required in terms of item 3 of the code on good practice on Dismissals which states that “informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Our courts have adopted the concept of “Corrective Disciplinary”.
3. Written warnings
This is a more formal type of measure and is usually preceded by a disciplinary enquiry. An employee is usually required to sign a written warning in acknowledgement of the receipt of the warning.
4. Final written warnings
It is usually the last warning before dismissal. In the case of National Union of Mine Workers and Another V East Rand propriety Mines Ltd (1987) 8ILJ 315 IC, the court held that offences of the employee should not be held against them in perpetuity. The courts are of the view that 6 months is a reasonable period to keep the final written warning. Furthermore, the existence of a prior warning does not give the employer the right to dismiss the employee without a proper hearing. The fact that an employee has a written warning regarding late coming, does not entitle an employer to dismiss an employee for using foul or improper language.
5. Suspension
Suspension usually occurs in one of two circumstances, either as a form of a preventative suspension, which occurs when disciplinary charges are pending or being investigated against an employee or the punitive suspension where it is imposed as a disciplinary penalty. In terms of the common law, full remuneration is usually required during suspension. However in terms of punitive suspension, employers argue that it defeats the purpose of the penalty.
6. Demotion
This occurs where the employee is placed either in a post lower to what he/she is presently in or where the employee is placed on a lower salary level. This measure, however, has a serious impact on the employment relationship and therefore cannot be made without a proper enquiry preceding the decision.
It must be noted that despite the fact that all our legislation as well as common law accepts that the employer has an undeniable right to discipline employees, an employer cannot use this right to treat employees in an unfair manner.
It is advisable that whenever the employer tries to implement any type of disciplinary measure, the employer should check the content of the organisations disciplinary code.
For any further enquiries that employers may have with regard to any Labour related matters, they can contact our Lesley Ramulifho at lesley@legaledge.co.za
Prepared by: Lesley Ramulifho
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