May 2018 Q3 b.
A disciplinary procedure is a process for dealing with perceived employee misconduct. Organisations will typically have a wide range of disciplinary procedures to invoke depending on the severity of the offence. Disciplinary procedures vary between informal and formal processes.
Required:
Explain a six-step formal disciplinary procedure which you wish to recommend to your organisation for inclusion in its policies. (12 marks)
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The steps in the disciplinary procedure generally follow graduated steps including a verbal warning, written warning, final written warning, and dismissal. However, in cases of gross or serious misconduct it is permissible to start at stage 4 of the procedure.
However, other sanctions apart from the nuclear option of dismissal should be considered by the employer. Alternatives might include a transfer to a different part of the workplace, different role, or demotion.
Keep in mind that an employee can be suspended on pay pending investigation but would only be suspended without pay pending an appeal of a dismissal.
Stage 1-Verbal/Informal warning
Generally an employee should receive a verbal warning for a first transgression.
Even though the employer is “only” giving a verbal warning, it is still part of a formal disciplinary process and the principles of natural justice, fair procedures, and equity/fairness would apply at all times. This would involve a meeting with the employee at which the employee could bring a colleague or other representative. There is no right to bring a legal representative, unless the employer agrees.
This may be a trade union representative, even though the employer may not formally recognise or engage with the union. His role will be as a minute taker and witness, not an advocate or spokesperson. At the meeting the employee should be advised of what the problem is and invited to respond and explain his actions. There should be no rush to judgement by the employer as the meeting is investigatory. Following the meeting a confirmatory letter should be given to the employee. This letter confirms that the employee has been given a verbal/oral warning. It should also contain the improvements required of the employee in respect of the behaviour which led to the warning and the time frame within which the improvement must be made. This letter should also state that failure to improve will lead to the 2nd stage of the disciplinary procedure and ultimately dismissal. It should also state the time period for which it will remain on the employee’s file, after which it will be removed. 3 months would be a reasonable period for this 1st verbal warning to stay on file, but it could remain for 6 months.
If an employee was suspended with pay pending an investigation it is vital that he knows how long the suspension is to last and the investigation must be held within a reasonable time frame. “Justice delayed is justice denied”. Once this disciplinary procedure has started the employer should assist the employee to improve conduct or performance, whichever was the source of the problem in the 1st place.
The employer should record the details of this 3 month monitoring period and retraining or relocation should be considered, if possible and reasonable. However, if the employee fails to improve or there is a repeat of the activity that caused the oral warning in the 1st place the employer can then issue a first written warning.
Stage 2-First Written Warning
The 1st written warning can be issued within the period of time advised for monitoring after the verbal warning, provided there is no improvement in conduct or performance. Before issuing it, the employee should be invited to another meeting, told of the transgression, and given the opportunity to respond. The written warning will then be issued and last for another 3 months. This warning should also clearly set out the nature of the problem, suggest solutions such as retraining, and advise of the possible sanctions (including dismissal) if no improvement is observed within the 3 months.
The employer should again afford all reasonable assistance to the employee to help him improve conduct and/or performance. However the employer must be mindful of his duty of care to other employees also.
Stage 3-Second Written Warning
If the required improvement is not forthcoming within the 3 month period after the 1st written warning then a 2nd written warning may be issued. This is entirely a matter for the employer and it is common for many employers to only issue a 1st and final written warning. This warning is done in a similar fashion to the other 2 warnings referred to above but you would consider giving a 6 month monitoring period to allow improvement.
Stage 4-Final Written Warning
If the required improvement is not happening then a final written warning would be issued with a 12 month monitoring period.
The letter confirming this warning will advise that if there is no improvement or if the bad behaviour/performance is repeated then dismissal will occur. This warning letter will be the final one prior to dismissal so it is important that it is well drafted as it will be scrutinised closely by the employee and probably his legal advisor. This letter should only refer to the matters which have been the subject of the disciplinary procedure to date and not other matters which have never been put to the employee.
Stage 5: Suspension without pay
Intended to signal seriousness and get employee to think over commitment to changing/improving behavior.
May be used for very serious first offenses, such as:
Gross insubordination
Substance abuse on the job
Others (as outlined in your discipline policy)
Review company policy and procedure.
Stage 6-Dismissal or action short of dismissal
If there is no improvement after the final written warning then dismissal is the likely outcome. A meeting should be called and the employee and his representative invited.
The employer should remind the employee of the behaviour/conduct that has led to this point, the repeated transgressions/failure to improve performance sufficiently, and that the dismissal is in accordance with the disciplinary procedure.
The employee should be given the opportunity to appeal within 14 days. He should also be given a letter confirming the dismissal and the right to appeal, the time period for appeal, and who to appeal to. (2 marks for every step= 12 marks)