In terms of disciplinary procedures, there are certain basics that must be clearly understood regarding complaints or transgressions.
First:
- A process of discipline deals only with matters of misconduct.
Second:
- A process of evaluation, counseling, guidance, training and so on, deals with matters of poor performance and incapacity or incompatibility.
Disciplinary investigation, enquiry and sanction are only applied in cases of misconduct. So misconduct is a disciplinary process. Poor performance and incapacity is a counseling process.
The objective of a disciplinary process is to correct an undesirable or unacceptable situation by applying progressive disciplinary measures or sanctions – if the first action taken does not bring about the desired result, then a more harsh or more strict or more stringent action is applied against the employee to persuade him/her to correct the situation and fall into line with the result that management require.
Eventually, if the sanctions do not achieve the desired result, dismissal may occur. The distinguishing characteristic of a counseling process is that instead of applying sanctions, the employer applies guidance, training and instruction to help the employee to overcome his/her weaknesses.
Should those processes fail and it is eventually decided that the employee simply does not have the ability to perform the inherent requirements of the job, then the employment contract could be terminated after following due process.
The only common factor is that should progressive discipline fail, or should training, guidance and instruction fail, them both misconduct and poor performance /incapacity end up in termination of the employment contract.
Identifying Misconduct:
How do you know if the complaint received against a certain employee is misconduct or incapacity?
The dictionary does not help much in defining “misconduct”. The Concise Oxford Dictionary defines “misconduct” as:
“Improper conduct, especially adultery; bad management.”
In terms of labour law, the following elements need to be considered in determining whether the transgression constitutes misconduct or not:
1. Misconduct is the fault of the employee. Not necessarily deliberate or willful, but none-the-less the fault of the employee. It is something he/she did do or omitted to do. Acts of misconduct include inter-alia: assault; theft; negligence; fraud; drunkenness; failure to obey reasonable instruction (insubordination); fighting; abusive language; absenteeism; competing with employer; disclosing trade secrets; damage to property and so on.
2. From the above, it will be deduced that misconduct is the breaking of a rule, regulation, a policy or procedure, or a standard of behaviour in the workplace.
3. In order for the rule to be broken, the employer must have had that rule in place, and the employee must have been aware of it or could be reasonably expected to have been aware of it. The employee cannot be held liable for breaking a rule or standard or be held liable for failure to observe a policy or procedure if he/she was not aware of the existence of that rule, standard. policy or procedure in the first place.
4. The employer must have consistently applied the rule. If the above conditions apply then you have a case of misconduct. The transgression will be Misconduct – assault. Or Misconduct – absent without authority.Or misconduct – insubordination. Or Misconduct – negligence.
Remember that “Misconduct” is not an offense – it is a heading under which a group of offenses are classified.
Please also avoid the use of the term “gross.”
Gross means 12 dozen or 144. It has no place in defining the nature of a transgression.
Negligence is negligence. Fraud is fraud. Theft is theft.
If a man steals an electric drill from site, that is theft. If he steals an electric drill plus an angle grinder, is that “gross theft?” If you wish to emphasize the seriousness of a charge, then that must be proved by the evidence you have and by the circ*mstances surrounding the commission of the offense.
If you wish, you may describe it as “Misconduct – assault with aggravating circ*mstances. “Or “Misconduct – theft with aggravating circ*mstances.” Or Misconduct – unauthorized possession of company property with aggravating circ*mstances.” Then make sure you have identified those aggravating circ*mstances.
Don’t just use that term to make the charge appear to be more serious.Use it only if the aggravating circ*mstances do actually exist and have been identified and will be used in evidence against the accused. But please, whatever you do, leave out this term “gross” – it is meaningless. By contrast, poor performance or incapacity is not the breaking of a rule or standard. Poor performance/incapacity is a consistent or repeated failure by the employee to attain or reach a standard of work in terms of quantity of output and/or in terms of quality assurance standards.
This is not the fault of the employee – it is due to a lack of experience, a lack of training, a lack of understanding of the production process, a lack of understanding of the work performance standard or perhaps just an inability to perform according to the inherent requirements of the job. It may also be due to the personal circ*mstances of the employee – financial problems, family problems, pending divorce action and so on.
A completely different process therefore handles it.Lastly, all reports of misconduct must be put in writing. The written complaint should contain as a minimum
- the date, time and place of the transgression,
- a full description of what happened,
- the name of the transgressor,
- the names of any witnesses,
Armed with this information, a formal investigation can be embarked on.
Although we take great care to ensure that the information on our website is accurate and up to date, readers are advised to always consult with a Labour Law Practitioner before acting on the information. The information on this website does not constitute legal advice. Kindly take notice of our disclaimer policy published at the bottom of the home page of this website.
