However, in the second case this rule had not been adhered to and as such the procedure had been deemed unfair. 12 of 2002.] Management may discipline an employee in respect of The procedure you’ve followed will be taken into account if the case reaches an employment tribunal. PDF. While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188 (1) (b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. This lends legitimacy to the Codes and ensures co-ownership between the social partners. HTML. While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. 4.1 The Code of Good Practice contained in Schedule 8 of the Labour Relations Act, 1995, insofar as it relates to discipline, constitutes part of this Code and Procedure. Download: More information. In order to establish the conduct employers expect from their employees in the workplace, all employers must adopt disciplinary procedures (according to the Code of Good Practice Schedule 8.3(1)). Employers must exercise their disciplinary powers in a consistent manner. Find out more about employment status. The Acas Code mainly applies to anyone legally classed as an employee. Common law does not require a hearing before a dismissal, and the employee admitted that she was using the contract to substantiate her claim of unfair procedure due to the fact that her contract stipulated that she was entitled to a hearing before a sanction. 5 Even though the law does not say exactly what a fair procedure is, the Code gives us guidelines. 3.1.2 Any other offence or similar offence listed in the Code, The Code of Good Practice - Dismissal 1. The procedure you’ve followed will be taken into account if the case reaches an employment tribunal. Introduction.—(1) This code of good practice deals with some of the key aspects of dismissal for reasons related to conduct and capacity. Issuing authority: Minister of Stale, President's Office (Public Service Management) , 36. Code of Good Practice The Code of Good Practice: Dismissal (the ‘Code’) recognises that a disciplinary hearing is not necessary if the employer ‘cannot reasonably be expected’ to hold such hearing. Please tell us why the information did not help, Acas Code of Practice on disciplinary and grievance procedures, I cannot find the information I'm looking for. • Disciplinary situations include misconduct and/or poor performance. 1. There are two main areas where a disciplinary system may be used: capability/performance and conduct. In this case, the written submissions were not in keeping with procedural fairness as the employee had not been given the opportunity to state his case before the sanction had been changed and handed down to him. The statutory right to be accompanied at certain types of disciplinary and grievance hearings as set out in Article 12 of the The court further noted that according to the Code of Good Practice: Dismissal, the law requires that the employee states their case in order for fairness to be observed in the case of a sanction being handed down to an employee. Unfortunately we cannot respond to individual requests for information. To help working relationships, employers might want to use the same procedure for workers. BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. 4.2 Employee conduct that may warrant a disciplinary action is listed in Annexure A. The Codes, to a large extent, address problems that were associated with the application of disciplinary and incapacity measures under the Public Service Act, 1994. The revised Code inserts new paragraphs 14 to 16 regarding disciplinary hearings and 36 to 38 in relation to grievance hearings, to ensure the Code reflects the law following Toal and another. Introduction.—(1) This code of good practice deals with some of the key aspects of dismissal for reasons related to conduct and capacity. employees and this term is used throughout Sections 1 and 2 of this Code. Disciplinary hearings are not criminal trials and less formality is required in such an occasion. The disciplinary procedure provides that a fellow employee or a shop steward of a recognised trade union should represent an employee. The Code does not replace disciplinary procedures written in collective agreements between 1.2. The true function of a disciplinary hearing is that the employee is given the opportunity to explain their side of the story before a sanction is issued, especially for highly serious matters such as charges that could lead to dismissal. The employee was asked to submit written representation as to why he should not be dismissed, after being given the dismissal. GoLegal is a leading industry news and information portal for the South African legal sector, catering to attorneys, corporate counsel, legal scholars, policy makers and other corporate and legal interest groups. If a shop steward is called to attend a disciplinary hearing the Code of Good Practice requires an employer to consult with the shop steward's trade union prior to issuing any notice to attend a disciplinary enquiry. Schedule 8 Code of Good Practice: Dismissal states: In general, a larger business will require a more formal approach to discipline. In the case of Northam Platinum Ltd v Phooko NO and Others, an employee’s final written warning given after a safety-related incident was changed to that of a dismissal. The Code gives crucial guidance on carrying out a fair procedure for misconduct and poor performance. It aims to summarise some of the provisions of the law and provide guidelines on applying the law. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions is to ensure that … There are no set guidelines as to what constitutes a proper disciplinary procedure. THE GOOD PRACTICE FRAMEWORK 6 Good disciplinary procedures Key principles ACCESSIBILITY • Are visible and obvious and easy to navigate for students and staff • Give clear information about how to access advice and support • Allow students to appoint a representative • Are responsive to the needs of students INDEPENDENCE • Ensure that decisions are taken by people who As such the allegation of bias had been found to be an attack on the presiding officer not on the facts of the case. If you need help, call our helpline on 0300 123 1190. Date of assent: 09 March 2007. The matter was referred to court whereupon the dismissal were regarded fair, due to the following reasons: This is not the first time that the issue of written submissions has been brought to the attention of the labour court. The employee’s counsel had not raised any objections to the hearing being conducted through written presentations. You must follow a full and fair procedure in line with the Acas Code for any discipline or grievance case. Unfortunately, the Code doesn’t tell us when this would be the case. and best practice for disciplinary hearings in accordance with the ACAS Code of Practice on Discipline and Grievance procedures and as governed by the Employment Act 2008. In the Code of Good Practice it has been indicated that disciplinary procedures need to be conducted with as little legal formality as possible while still staying within the legal boundaries of the Labour Relations Act (1995 amended 2014), keeping consistency, and promoting progressive discipline in the workplace. 122 Responses to Disciplinary procedures: 10 common breaches of the Acas code of practice Lori Morris 17 Jan 2014 at 3:16 pm # I wish to know the minimum time allowed between telling an employee they are to be disciplined and the hearing. 1. Coronavirus (COVID-19): latest advice for employers and employees. Sub legislation grou. 1.1. The results of the consultation were published on 16 January 2015, together with a draft revised Code. An employer’s rules must create certainty and consistency in the application of discipline. While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The Acas Code of Practice on disciplinary and grievance procedures. A recent decision handed down to the CCMA in the case of Mathabathe v Nelson Mandela Bay Metropolitan Municipality and another (hereafter the Mathabathe case), the employee was dismissed after a disciplinary hearing was held via written representations completed by both parties and handed in to be judged by an independent third party, i.e. The ACAS Code of Practice on Discipline and Grievances sets clear parameters for both employers and employees to follow when handling these issues in the workplace. Continue overleaf › Disciplinary Procedures Disciplinary situations include misconduct and/or poor performance. IMPLEMENTING A DISCIPLINARY HEARING. 42 of 1996 and by s. 56 of Act No. Resigning with immediate effect in the face of a disciplinary sanction to be imposed – A classic case of dodging the bullet, or not! 2019 GOLEGAL ALL RIGHTS RESERVED | WEBSITE POWERED BY, Dealing with employee misconduct and negotiated exits, Under the influence - No proof, no dismissal, Employee incentive schemes: Retaining and incentivising key employees during uncertain times. This code is published in terms of Section 109 of the Industrial Relations Act. This Code of Good Practice deals with some of the key aspects of termination of employment. The new Codes introduce a shift away from statutory prescription to collective agreement. THE PUBLIC SERVICE DISPRINARY CODE OF GOOD PRACTICE. The Acas Code of Practice on disciplinary and grievance procedures, Discipline and grievances at work: the Acas guide. The Acas Code of Practice on Disciplinary and Grievance Procedures is an essential read for any business owner, manager or HR professional dealing with disciplinary hearings. These rules must be consistent and in larger businesses disciplinary processes are expected to be more formalised in terms of disciplinary hearings. Ivan Israelstam Item 4 of the Code of Good Practice: Dismissal (The Code) contained in Schedule 8 of the Labour Relations Act (LRA) states that, when an enquiry is held into an employee’s alleged misconduct “The employee should be These cases shows us that while the Code of Good Practice: Dismissals does not indicate what or how the disciplinary procedure needs to be conducted, it would seem to be that if the true function of the disciplinary hearing is adhered to, the procedure would be fair. It is intentionally general. The first case indicated that both sides of the story had been heard and therefore the dismissal had been considered fair. The Code is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and was laid before both Houses of Parliament on 16 January 2015. While the Code outlines the principles of fair procedures for employers and employees generally, it is of particular relevance to situations of individual representation. Select the statement you most agree with: Please do not include any personal information, for example email address or phone number. Managers must be thoroughly trained in disciplinary process and the employer must use genuine labour law experts to chair and/or prosecute hearings. The court further noted that according to the Code of Good Practice: Dismissal, the law requires that the employee states their case in order for fairness to be observed in the case of a sanction being handed down to an employee. You must follow a full and fair procedure in line with the Acas Code for any discipline or grievance case. The Codes of Good Practice: Dismissal (the “Codes”), as per Schedule 8 of the LRA, do not necessarily prescribe how a disciplinary hearing should be conducted [ii], however, and as seen in case law, if the true ambits of the Code are realised and the function is adhered to, then the process in essence will be fair. Code of Practice on Disciplinary and Grievance Procedures - 3rd April 2011 This publication sets out how to manage discipline and grievance processes in line with legal requirements and best practice. The applicant’s legal representatives applied for postponing of the disciplinary hearing due to the fact that the employee had been booked off sick on the day she was given the charges. This Code of Practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. Each case is unique, and departures from the norms established by … 42 of 1996 and by s. 56 of Act No. Tax deductions for home expenses - Working from home, Promote Legal Conferences, Events and Seminars. CODE OF GOOD PRACTICE: DISMISSAL [Schedule 8 amended by s. 57 of Act No. a chairperson. In Article Archive, Article Archive - Home, Article Archive - Teazer by Barney Jordaan 31 July 2018 3 Comments. Capability or performance is about an employee’s ability to do the job. 12 of 2002.] Want the latest legal news and views in your box? It needs to be noted that in these cases, that vastly contrasts one another, the Audi Alterum Partem Rule can be distinguished in both. The content of the particular disciplinary codes of various employers will naturally differ. If employers have a separate capability procedure they may prefer to address However, it is good practice to allow all workers access to disciplinary and grievance procedures. Schedule 8 Code of Good Practice Dismissal, Item 4 If employers have their own disciplinary procedures that follow the Code of Good Conduct: Dismissal, they must follow them. The Disciplinary Procedure • Section 14(1) Unfair Dismissals Act 1977-2014 “An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a The court further ruled that there were no bias to the decision made as the independent chairperson allowed the employee the opportunity to state her case. It is intentionally general. In force: Yes. It is the duty of the tribunal to ensure that both employer and employee have acted in accordance with the Code of Practice, and to use it as a direct reference point for best practice. Did you get the information you need from this page? It is intentionally general. Each case is unique, and departures from the norms 3.1 A Disciplinary Hearing should be held in all cases by Managers / Supervisors where: 3.1.1 Counselling or coaching, followed by a verbal warning, for offences such as those listed at 4 (minor) in the Disciplinary Code have failed. Published 11 March 2015. CODE OF GOOD PRACTICE: DISMISSAL [Schedule 8 amended by s. 57 of Act No. This list is not exhaustive. The fairness issue was brought up in the case of Northam Platinum Ltd v Phooko NO and Others where the employee was first given the final written warning and then the final written warning was changed to a dismissal without allowing the employee the chance to state his side of the story, which has been demonstrated to be the incorrect way to conduct a disciplinary hearing through written representations. Introduction.—(1) This code of good practice deals with some of the key aspects of dismissal for reasons related to conduct and capacity. The Acas Code of Practice on disciplinary and grievance procedures is the minimum an employer should follow for handling these issues in the workplace. Further information and help If you require further information or help with this publication please contact us. 1.3. CONSISTENCY IN DISCIPLINARY CASES. Labour Relations Act: Code of Good Practice: Collective bargaining, industrial action and picketing The presiding officer ruled that the matter proceed by evidence on affidavit, and set timeframes for the parties involved. Home » Labour Law » Getting the disciplinary hearing right. It comes into effect by order of the Secretary of State on 11 March 2015 and supersedes 9780117067288, Disciplinary and Grievance Procedures - Code of Practice 1 2009 Edition. The court dismissed the case and awarded costs against the employee. See also: Dealing with employee misconduct and negotiated exits. Disciplinary hearings are not criminal trials and less formality is required in such an occasion. Some employers might have a separate procedure for dealing with capability or performance issuesthat should be based on: 1. support 2. training 3. encouragement to improve Whether the employer deals with the issue under a capability or disciplinary procedure, they must do so fairly. If in the event that an employee is willing to go through a hearing via written submissions, the employer needs to give the element of fairness the utmost consideration and to allow for an independent chairperson to conduct proceedings in order to prevent allegations of bias. The Code of Practice Introduction 1 This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. This Code intends to assist- The new paragraphs can be read here. Disciplinary Hearings: When should external counsel be permitted? A consistent manner Practice to allow all workers access to disciplinary and grievance procedures discipline... 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