Learning Unit 7: Discipline in the Workplace and Dismissal for Misconduct

Question 1

What constitutional right is contained in section 23 of the Constitution?

Answer 1

The right to fair labour practices

Question 2

What does the constitutional right to fair labour practices mean for employees?

Answer 2

Employees have a fundamental right not to be subjected to unfairly labour practices, including not to be unfairly dismissed (s185 LRA)

Question 3

What must be met before an employee can be dismissed?

Answer 3

Both substantive and procedural requirements

Question 4

What values are ensured by meeting these requirements for dismissal?

Answer 4

Fairness and respect for human dignity

Question 5

What philosophy corresponds with the principle of not penalising someone before hearing their side?

Answer 5

Ubuntu

Question 6

What does the audi alteram partem rule signify?

Answer 6

No one should be penalised before his or her side is heard

Question 7

How does the principle of procedural fairness manifest in discplinary processes?

Answer 7

An employee must know what they are accused of, have an opportunity to prepare their side, and the opportunity to cross-examine witnesses.

Question 8

True or False: An employee can be dismissed without meeting procedural requirements.

Answer 8

False

Question 9

What is the employer’s right in the workplace?

Answer 9

The employer has the right to maintain and enforce discipline in the workplace.

This right originates from common law.

Question 10

What is a distinguishing “right” of the contract of employment?

Answer 10

The employer’s right of control over an employee’s work performance.

This right allows employers to manage how work is performed.

Question 11

List the implied duties imposed on employees from the contract of employment.

Answer 11

• To enter and remain at work
• To perform diligently and competently
• To obey lawful and reasonable instructions
• To act in good faith and serve the interests of the employer

These duties ensure that employees contribute positively to the workplace.

Question 12

True or False: The employer’s right to discipline employees is meaningless without the right to control.

Answer 12

True

Without the right to discipline, the employer’s control and the duties of employees lack enforcement.

Question 13

What can an employer dismiss an employee for under common law?

Answer 13

Misconduct

Misconduct is defined as a willful or negligent breach of the contractual duties imposed on employees.

Question 14

What type of misconduct can lead to summary dismissal?

Answer 14

Serious misconduct, such as theft or assault

Serious misconduct justifies immediate termination without notice.

Question 15

What must an employer do if the misconduct is not serious?

Answer 15

Give the required notice of termination

Notice periods and notice pay are governed by the BCEA.

Question 16

Which act contains rules regarding notice periods and notice pay?

Answer 16

BCEA (Basic Conditions of Employment Act)

The BCEA outlines the rights and obligations of employers and employees regarding termination.

Question 17

What does section 37 of the BCEA state?

Answer 17

Employers and employees can terminate the employment relationship without notice for any cause recognized by law

This includes cases of serious breaches of the contract of employment.

Question 18

What does the BCEA still allow in cases of serious contract breaches?

Answer 18

Summarily termination

Summary termination occurs without notice when the contract is seriously breached.

Question 19

What must be considered when interpreting the right to summarily dismiss an employee?

Answer 19

Provisions of the LRA (Labour Relations Act) regarding fair procedure

The LRA emphasizes the need for fair procedures in employment termination.

Question 20

What is one option available to an employer besides dismissal?

Answer 20

Imposing a less severe penalty on an employee guilty of misconduct

This could include actions like issuing warnings or suspending the employee on full pay.

Question 21

What must an employer comply with when imposing lesser sanctions?

Answer 21

Common law principles

Failure to comply could constitute breach of contract on the part of the employer.

Question 22

Is an employer allowed to suspend an employee without pay?

Answer 22

No

Such a suspension would constitute breach of contract.

Question 23

What types of penalties can an employer impose under common law?

Answer 23

Suspension on full pay and warnings

These penalties must comply with common law principles.

Question 24

What is the effectiveness of suspension on full pay as a deterrent?

Answer 24

Questionable

It likely has little value as a deterrent.

Question 25

What gives employers significant power in disciplining employees?

Answer 25

The employer's superior bargaining power and right to dismiss with notice ## Footnote This power allows employers to enforce rules and discipline effectively.

Question 26

True or False: An employer can order the forfeiture of an agreed bonus as a penalty.

Answer 26

False ## Footnote This would also constitute breach of contract.

Question 27

What does the LRA recognize regarding an employer's common law rights?

Answer 27

The LRA recognizes the employer's common law right to discipline employees and to dismiss employees for misconduct in serious cases. ## Footnote This recognition is evident from section 188(1) of the LRA.

Question 28

What does section 188(1) of the LRA stipulate about dismissal?

Answer 28

Section 188(1) allows for dismissal based on the conduct of an employee. ## Footnote It highlights the lawfulness of dismissal in common law contractual terms.

Question 29

What does section 188(2) of the LRA require employers to consider?

Answer 29

Employers must take any relevant code of good practice issued in terms of the LRA into account. ## Footnote This is to determine whether the dismissal is substantively and procedurally fair.

Question 30

What is the Code of Good Practice: Dismissal?

Answer 30

A set of guidelines contained in Schedule 8 to the LRA that provides details on how to assess the fairness of dismissals.

Question 31

Is a deviation by the employer from the rules in the code allowed?

Answer 31

Yes as it does not automatically render discipline unfair or unlawful. But the process followed must have been fair and executed consistently.

Question 32

What is required of the employer when exercising disciplinary power?

Answer 32

Consistency ## Footnote The employer has an element of flexibility but must maintain fairness.

Question 33

Does the Code have to cover all kinds of infringements?

Answer 33

No, some infringements are so obvious and common that they require no mention in the code ## Footnote Courts endorse a progressive discipline approach.

Question 34

List the components of a progressive discipline approach endorsed by courts

Answer 34

* Suspension without pay * Verbal warnings * Written warnings * Demotion * Transfer ## Footnote These have to be approved by the employee and only can be used as a disciplinary sanction that is alternative to dismissal.

Question 35

What types of behavior are typically reserved for dismissal?

Answer 35

* Gross dishonesty * Wilful damage to company property * Wilful endangering of the safety of others * Physical assault on employer, employee, client, or customer * Gross insubordination ## Footnote Dismissal is a severe disciplinary action.

Question 36

Should employers adhere to their own disciplinary codes?

Answer 36

As a general rule, yes ## Footnote However, there is a measure of leeway for deviations.

Question 37

Can employers deviate from disciplinary codes even if contained in a collective agreement?

Answer 37

Yes ## Footnote Courts allow some flexibility in applying disciplinary codes.

Question 38

Why is it considered unfair to force employers to only discipline employees for specific breaches?

Answer 38

Because no disciplinary code can anticipate all future circumstances ## Footnote Rigid application may not account for unique situations.

Question 39

True or False: Disciplinary codes can anticipate all future circumstances.

Answer 39

False ## Footnote Disciplinary codes are not exhaustive and may not cover every situation.

Question 40

Fill in the blank: Courts afford a measure of _______ to employers in applying disciplinary codes.

Answer 40

leeway

Question 41

What does it mean for an employer to deviate from a prescribed procedure in disciplinary codes?

Answer 41

It may not necessarily be viewed as unfair to the employee ## Footnote Context matters in evaluating fairness.

Question 42

What alternatives to dismissal does the LRA promote?

Answer 42

Through the principle of progressive discipline: * **Counselling** * **Warnings** * **Informal** **correction**

Question 43

What are the two conditions for a disciplinary action to be pronounced fair?

Answer 43

1. There must be a **breach** of a **code** or **rule**.* (substantive)* 2. The **correct procedure **must be followed.* (procedural)* ## Footnote These conditions ensure that disciplinary actions are justified and adhere to established guidelines.

Question 44

What section of the LRA includes unfair discipline short of dismissal?

Answer 44

Section 186(2) of the LRA ## Footnote This section lists potential unfair labour practices.

Question 45

True or False: An employer can impose a written warning without it being challenged as an unfair labour practice.

Answer 45

False ## Footnote Employees can challenge any sanction short of dismissal.

Question 46

What types of sanctions can be challenged as unfair labour practices under Section 186(2)?

Answer 46

* Written warning * Final warning * Suspension without pay

Question 47

What are the two types of suspensions that an employer may impose?

Answer 47

Precautionary and punitive suspensions ## Footnote Precautionary suspensions are measures taken to prevent further issues while punitive suspensions are disciplinary actions taken due to a contravention.

Question 48

When may an employer choose to suspend an employee?

Answer 48

As a precautionary measure or punitively depending on the nature and gravity of the contravention ## Footnote This decision is influenced by the severity of the employee's actions.

Question 49

What initiates the disciplinary process?

Answer 49

An employer becoming aware of alleged misconduct by an employee

Question 50

What is the purpose of the investigation during the disciplinary process?

Answer 50

To gather information about the incident which may be used as evidence

Question 51

When is informal discipline typically used?

Answer 51

In cases of relatively minor misconduct where corrective discipline is required

Question 52

What is the role of managerial discussions in the disciplinary process?

Answer 52

To decide on the discipline to be imposed with the employee and trade union representative

Question 53

Can an employee challenge the fairness of informal discipline?

Answer 53

Yes, even if it was imposed informally and short of dismissal

Question 54

Can employers change the reason for dismissal?

Answer 54

No, employers may not introduce a new reason for dismissal during subsequent proceedings like arbitration as the employer will be held to the original reason for dismissal. ## Footnote *Samancor Chrome Ltd v CCMA & others* (2020) and *National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine* (2014)

Question 55

True or False: An absent employee may be seen as a fraudster.

Answer 55

True.

Question 56

What is a potential consequence of a poor attitude towards work performance?

Answer 56

It can amount to a breach of conduct as the employee had by virtue of them agreeing to the terms and conditions of employment committed to honouring every letter of the contract. ## Footnote This breach can lead to disciplinary action or dismissal.

Question 57

What principle applies when an employee is incapable of performing his/her work due to poor or unacceptable attitude to the performance of work?

Answer 57

Principles of incapacity apply

Question 58

Fill in the blank: A poor attitude to the performance of work can lead to a breach of ______.

Answer 58

[conduct] ## Footnote This breach may have serious employment consequences.

Question 59

What are the two types of blameworthiness in regards to poor attitude to the performance of work?

Answer 59

1. Employee is **negligent** in the **performance** of their **duties** 2. Employee **deliberately** **refuses** or **fails** to **perform** their duties or some of these duties.

Question 60

Can an employer fairly dismiss a genuine poor performer under the guise of misconduct?

Answer 60

No - *Consol Glass v National Bargaining Council for the Chemical Industries & Others* (unreported LAC 2017)

Question 61

How can an employer distinguish incapacity and poor performance misconduct?

Answer 61

1. If the employee **always worked well** and performed according to standards then **suddenly deviates**, it could be seen as **potential misconduct** as employee knows how to do the job. 2. If the employees **performance** has been marked by **constant deviations** from **standards** then may be indication that something fundamental preventing employee.