Unit 2 - Disciplinary & Grievance

Question 1

Who is responsible for the maintenance of discipline, promotion of stability, job security and fair and equal treatment of e/es?

Answer 1

The employer

Question 2

What is the purpose of a grievance procedure?

Answer 2

To seek to resolve a complaint at personal level as quickly and as close to the source of the complaint as possible.
- Aimed at avoiding a grievance becoming a dispute

Question 3

What is the definition of a grievance?

Answer 3

A complaint by an e/e affecting the employment relationship of the person concerned, or where there is an alleged misinterpretation, or violation of his or her rights.

Question 4

Are time periods prescribed in legislation iro grievenace procedures?

Answer 4

No, but must be reasonable taking into account resolving the matter as soon as possible while allowing parties to prepare and make representations in accordance with the audi alteram partem principle.

Question 5

What are the 5 steps/parts of a Grievance Procedure?

Answer 5

1. Oral interview
2. Lodging a grievance
3. Meting with superior/employer
4. Meeting with employer
5. Unresolved grievance

Question 6

Draft ‘Oral Interview’ part

Answer 6

• A sincere attempt should be made to resolve a grievance by an oral interview between the grievant(s) and his/her employer.
• In the event that the parties are unable to settle the grievance through discussion, the grievant(s) will follow go to step 2: lodging of grievance.

Question 7

Draft ‘Lodging of Grievance’ part

Answer 7

• A grievant(s) may lodge a grievance with his/her/their superior or employer in writing no later than 7 days following the date on which the alleged grievance occurred.
• Full details of the nature of the grievance must be supplied and the grievance must be signed by the grievant(s).

Question 8

Draft ‘Meeting with Superior/Employer’ part

Answer 8

• Within 3 working days of receipt of the written grievance, the superior/manager and the grievant(s) shall meet in an effort to resolve the matter to the satisfaction of all parties.
• The superior shall communicate the outcome of the meeting to the employer.
• If an action/decision or lack of action/decision concerns the superior, the grievant(s) may refer the matter directly to the employer.

Question 9

Draft ‘Meeting with Employer’ part

Answer 9

• If the grievant(s) is not satisfied with the outcome of the meeting referred to in step 3 above, the matter may be referred in writing to the employer.
• The employer shall within 5 working days of receipt of the written referral with the grievant(s) in an attempt to resolve the matter.

Question 10

Draft ‘Unresolved Grievance’ part

Answer 10

• In the event that a grievance remains unresolved after the meeting referred to in step 4 above, the grievant(s) may, depending on the nature of the grievance, declare a dispute in terms of relevant labour legislation.

Question 11

To whom does the Disciplinary Code apply?

Answer 11

To all employees appointed by the e/r and is implemented without exception when disciplinary action is taken.

Question 12

What is the purpose of the Disciplinary Code?

Answer 12

To encourage disciplined conduct among all employees, which is to the advantage and for the safety of each individual as well as for the promotion of the business objectives.
- It is designed to maintain the promotion of the business standards and codes of conduct and NOT TO PUNISH the e/e.

Question 13

When must disciplinary action be taken?

Answer 13

Where reasonably possible, only after informal counselling and verbal warnings have failed to produce the desired results.

Question 14

What does ‘counselling’ entail?

Answer 14

Includes that the problem is communicated to the e/e

• he/she is informed about what is expected of him/her
• He is encouraged to solve the problem
• The employee is warned of the possible consequences if the unsatisfactory conduct or behaviour should continue
• The e/r shall, however, have the right to immediately resort to disciplinary action should the alleged misconduct of an e/e warrant such action.

Question 15

Name examples of misconduct

Answer 15

a. Fails to comply with any provisions of his contract of employment or any of the e/r’s codes of conduct, policies or similar
b. Performs or causes or permits to be performed or assists in any act which is prejudicial to the administration, discipline or efficiency of the business
c. Disobeys, disregards or wilfully defaults in carrying out a lawful order given to the e/e by a person having the authority to give the order, or by word or conduct displays insubordination
d. Is negligent or indolent in carrying out his duties
e. While on duty or acting in an official capacity, is under the influence of intoxicating liquor or stupefying drugs
f. Without leave or a valid reason, is absent from duty

Question 16

What are the 14 parts of the Disciplinary Procedure?

Answer 16

1. Preliminary investigation of alleged misconduct
2. Task of the investigator
3. Charge(s) of misconduct
4. Suspension of employee
5. Disciplinary enquiry
6. Appointment of a disciplinary tribunal
7. Time and place of enquiry
8. Informing the employee of his rights
9. Recording of the proceedings
10. Conducting the enquiry
11. Finding of disciplinary tribunal
12. Penalties
13. Right of appeal
14. Appeal procedure

Question 17

Draft ‘Prelim. investigation of alleged conduct’

Answer 17

• If it should be alleged or suspected on reasonable grounds that an employee is guilty of misconduct, and if it is sufficiently serious to justify resorting to disciplinary action, the e/e’s superior will report the matter to the employer.
• The e/r will then appoint a fit and proper person (“the investigator”) to investigate the allegation or can investigate the matter himself.

Question 18

Draft ‘Task of the investigator’

Answer 18

• The task of the investigator will be to ascertain when, where and under what circumstances the misconduct was allegedly committed.
• He will obtain evidence in order to determine whether there are grounds for a charge of misconduct against the e/e.
• He will collate the evidence and prepare a draft charge sheet, setting out all the potential charges against the e/e.
• The investigator will then report to the e/r.

Question 19

Draft ‘charge(s) of misconduct’

Answer 19

• If the e/r is of the opinion that the report of the investigator shows sufficient grounds for a charge of misconduct against the e/e, the e/r will serve on the e/e a written charge of misconduct.
• The written charge will contain all the alleged offences in clear and concise terms and state when and where the misconduct was allegedly committed.
• Each charge will contain such additional information as may reasonably be necessary for the e/e to understand the charge and to prepare his defence.
• The e/r may at any time withdraw a charge of misconduct
• The e/e will within 7 days of receipt of the written charge submit a written admission or denial of the charge, which may include a written explanation regarding the misconduct with which the employee is charged

Question 20

Draft ‘suspension of employee’

Answer 20

• The e/r may at any time before or after charging an employee with misconduct, suspend the e/e from duty on such conditions as the e/r may determine.
• The e/r will inform the e/e in writing of his suspension and the reasons for his suspension.

Question 21

Draft the ‘Disciplinary enquiry’

Answer 21

1. Appointment of a chairperson for a disciplinary hearing:
   - The e/r shall appoint a chairperson for a disciplinary hearing to conduct the formal disciplinary enquiry
2. Time and place of enquiry:
   - The chairperson, in consultation with the employer, shall determine the time an place of the disciplinary enquiry and the e/r shall give the e/e and the trade union concerned at least 5 days’ notice in writing thereof
3. Informing the e/e of his rights
   - The employee shall be informed that he has the following rights during the disciplinary enquiry:
   a. The right to be present at the enquiry
   b. The right to be assisted or represented by a fellow e/e, trade union rep. No outside representation will be allowed.
   c. The right to be heard
   d. The right to call witnesses and hand in documentation
   e. The right to cross-examine any person called as a witness in support of the charge
   f. The right to appeal if the company code makes provision for such
   g. The right to address the chairperson on his guilt or innocence
   h. If found guilty of a transgression, the right to address the chairperson on mitigating factors
   i. The right to have access to documents produced in evidence
   j. The attendance of an interpreter, if necessary

Question 22

Draft ‘recording of the proceedings’

Answer 22

• The chairperson will make arrangements for the accurate recording of the proceedings during the disciplinary enquiry

Question 23

Draft ‘conducting the enquiry’

Answer 23

• At the start of the enquiry, the chairperson will explain the purpose of the enquiry to the e/e in the presence of the person assisting the e/e.
• He will read the charge sheet and explain the charges to the e/e.
• The chairperson will give the e/e an opportunity to state the nature of his defence.
• The investigator will then proceed to lead evidence in his defence.
• For purposes of the enquiry, the chairperson may summon any person who may be able to give information or documentation of material importance concerning the subject of the enquiry
• The chairperson may ask questions to any person at any stage of the enquiry in order to clarify any matter on which evidence is lead

Question 24

Draft ‘finding of chairperson’

Answer 24

• After conclusion of the disciplinary enquiry, the chairperson shall make a finding on the question of whether the e/e is guilty of the misconduct charged with or not.
• The chairperson shall make a finding on every charge of misconduct against the e/e.
• The chairperson shall within 7 days after conclusion of the enquiry report to the e/r and the e/e on its findings.

Question 25

Draft ‘penalties’

Answer 25

• If the e/e should be convicted on the charge(s) of misconduct or if the employee admits the charge(s), the EMPLOYER shall make a decision on the appropriate penalty within 7 days of receiving the findings of the chairperson.
• The following penalties may be imposed:
  a. Summary dismissal
  b. Dismissal with payment in lieu of notice
  c. A final written warning (which shall be valid for 6 months); or
  d. A written warning (which shall be valid for 6 months)

Question 26

Draft ‘right of appeal’

Answer 26

• The e/e has no right of appeal against the findings of the disciplinary investigation and the decision of the e/r.
• The e/e must refer the matter to the CCMA within 30 days if the finding or sanction is in dispute in accordance with the LRA

Question 27

Which factors must be taken into account when deciding on the appropriate penalty?

Answer 27

• The circumstances under which the offence was committed
• The penalties imposed for similar offences
• Written warnings issued to the e/e that have not yet lapsed
• The e/e’s age
• Position
• Length of service
• Meritorious service rendered by him