Ivan Israelstam, Chief Executive of Labour Law Consulting writes:
Two things that an employer is required to prove when it is dragged to the CCMA are that:
• The rule that the employee is alleged to have broken existed at the time of the alleged offence
• The dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.
In the case of Martens Vs Nel (1998, 9 BALR 1167) Martens, a bartender in a nightclub was dismissed for flirting with customers. He claimed at the CCMA that he had never been informed of any rule prohibiting flirting. The arbitrator found that the dismissal was unfair because Martens had not been given the rules relating to behaviour towards customers. The employer was ordered to pay Martens 10 months’ remuneration in compensation.
This makes it clear that:
- Every company, partnership, sole trader, organisation needs to draw up its own Disciplinary Code
- Induct every employee as to its Disciplinary Code
- Keep proof that the above has been done so that, if a dismissed employee claims at the CCMA that he did not know the rules, the employer can prove that this is an invalid excuse.
A Disciplinary Code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. As required by Schedule 8 of the LRA, these penalties need to be appropriate in the light of the seriousness of the offence.
When designing the Disciplinary Code for your organisation remember:
• The offences need to be clearly described
• The rules need to be reasonable and fair
• They need to be realistic so that it is possible for employees to follow them
• You should try to include all those rules which pertain specifically to your company/organisation
• To communicate the code to all your employees in a language they understand
• You should explain the reason for rules which employees could have trouble in understanding. For example, you may prohibit your employees’ from receiving visitors at work. If your reason is that visits interrupt work or that security could be compromised you should explain this
• To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.
Assign a labour law and industrial relations expert to:
- Check your Disciplinary Code for legal defects
- Add in rules that are missing
- Train your management in the interpretation and application of the code.
Details: For training seminars contact Ronni, 011 084 521 7492 or ronni@labourlawadvice.co.za
