Institute Disciplinary Action In The Workplace

Training Outline

Module 1: Disciplinary Action      

Outcome 1: Delegates must understand the theory regarding the legalities in developing a Workplace Disciplinary  Code

• Identifying the need for Disciplinary Action
• Principles of maintaining Discipline in the Workplace
• Is Entrapment Legal?
• Organisational Practice related to Transgressions
• Basic structuring of the Disciplinary Code
• The Organisation’s Disciplinary Procedures
• Relevant Legal Requirements and Processes
  • Schedule 8
• The Labour Relations Act
  • Introduction to the Act
  • General Codes of Good Practice
• The Code of Good Practice – Dismissal
  • Broad Terms
  • Code of Good Practice – Dismissal – Detailed Discussion
    • Introduction
    • The Code provides some fair reasons for dismissal
    • The Code provides the Disciplinary Procedures prior to Dismissal being considered
    • Importantly, the Code provides for a fair Procedure for Dismissals for Misconduct
    • Regarding Disciplinary Records
    • Dismissals and Industrial Action
    • Guidelines in cases of Dismissal for Misconduct
    • The Code addresses Probation as well
    • The Code has Guidelines in cases of Dismissal for Poor Work Performance
    • Regarding Incapacity: Ill health and Injury
    • Guidelines in cases of Dismissal arising from Ill Health or Injury
• Further discussion on Code of Good Practice – Dismissal
• Procedure for Instituting Disciplinary Action
• Procedural versus Substantive Fairness
• Formal Vs. Informal Disciplinary Process
  • Informal Disciplinary Action
  • Formal Disciplinary Action

• Disciplinary Sanctions
  • Types of Sanctions
  • Alternate to Dismissal
  • Examples of Sanctions
    • Verbal warning
    • Written Warning
    • Final Written Warning
    • Expired Sanctions
• Legal Requirements for Instituting Disciplinary Action
• Pre-Dismissal Arbitration Instead of Disciplinary Hearing
• Applicable Timeframes for Instituting Disciplinary Action
• Appointing a new Employee – is Probation legal?

Outcome 2: Gather Sufficient Information concerning the Alleged Transgression (The Investigation)

• Principles of Evidence Gathering
  • Who should investigate?
  • What is the purpose of the investigation?
  • How long should the Investigation last?
  • Must the employee know of the Hearing?
  • Witness Statements
  • What makes a good investigator?
  • Types of Evidence
  • Classify the Transgression
  • Select the Correct Procedure for Handling the Transgression
• Rules when using a Document as Evidence in an Internal Disciplinary Hearing or at the CCMA
• Difference Between Poor Performance and Misconduct Issues
  • Poor Performance
  • Misconduct versus Poor Performance
  • Misconduct
  • Blurred lines…
• Suspending an Employee While an Investigation Takes Place
  • Suspension Reasons Checklist
  • How to Suspend an Employee
  • Checklist to follow during this Discussion
• Criminal Offences

Outcome 3: As part of the counselling Process, Delegates must be able to Correct Poor Performance

• Guidelines for Correcting Poor Performance (not ill-health or injury related)

• Class Activity 1:
  • Identify and Classify Typical Workplace Transgressions
  • Case Study – poor performance counselling

Module 2:

Outcome 1: Delegates must be able to Implement a Procedure to Handle Non-Dismissible Offences

• Introduction
• Prepare for a Hearing
  • Step 1: Investigate the Alleged Offence
    • Inform the Employee of the Offence
    • Step 2: Present the Evidence to the Employee
    • Step 3: Allow the Employee to State His/Her Case
    • Step 4: Decide on Appropriate Disciplinary Action
      • Verbal and Written Warnings
    • Step 5: Inform the Employee of the Action Taken
    • Step 6: Record the Action Taken
• Class Activity 2
  • Case Study – Implement Procedure to Handle Non-Dismissible Offences

Module 3:

Outcome 1: Delegates must be able to Implement a Procedure to Handle Dismissible Offences

• Introduction
• Prepare for a Hearing
  • Conduct Further Investigation and Gather Detailed Information
• Conduct the Formal Disciplinary Process
  • Step 1: Confirm Preliminary Matters
  • Step 2: Hear the Pleadings
  • Step 3: Hear the Evidence and Cross-Examination Presented by the Parties
    • Principles of Presenting Evidence
    • Step 4: Summarise and Categorise the Evidence
    • Step 5: Establish the Facts and Make a Decision (Verdict)
      • Conclude a Decision
      • Guidelines for Appropriate Disciplinary Sanctions
      • Letters of Warning
    • Step 6: Communicate the Decision (Verdict)
    • Step 7: Hear Mitigation and Aggravation
    • Step 8: Decide on the Sanction (Penalty)
    • Step 9: Communicate the Sanction (Penalty)
    • Step 10: Inform the Employee of His/Her Rights Regarding Appeals
    • Step 11: Record the Disciplinary Hearing

• Disciplinary Records
• Confidentiality of Decisions
• Ensure That the Process Meets Procedural Requirements
  • The Legal Tests to Ensure Procedural and Substantive Fairness
    • Procedural Quicklist. (have we followed a fair procedure)
    • Substantive Fairness – Misconduct (is my reason good enough to justify dismissal)
    • Substantive Fairness – Incapacity – Poor Work Performance
    • Substantive Fairness – Incapacity – Ill Health
    • Operational Requirements – retrenchments

• Class Activity 3:
  • Case Study: Implement Procedure to Handle Dismissible Offences

Module 4:

Outcome 1: Delegates must know how to represent an Accused at a Hearing

• Represent an Employee at Disciplinary Hearing
• Who is responsible for the training of representatives?
• Guidelines for shop stewards in terms of disciplinary hearings.
  • Phase 1 – Employee receives Notification of Disciplinary Hearing
  • Phase 2 – Prepare for the Hearing:
  • Phase 3 – The Hearing
  • Phase 4 – The Chairperson makes his finding:
  • Phase 5 – Mitigating circumstances
  • Phase 6 – Circumstances in aggravation
  • Phase 7 – The Sanction
  • Phase 8 – The Appeal
• The deregistered Trade Union

• Class Activity 4:
  • Case Study: Represent an Employee at Disciplinary Hearing
• Class Activity 5:
  • Case Study: Participate in a Disciplinary Hearing
• Class Discussions:
• Disciplinary Hearing Checklist:
  • The Chairperson’s Step-By-Step Guide