Labour legislation requires of employers to ensure that their “…standards of conduct are clear and made available to employees in a manner that is easily understood.” Therefore, two of the many things that an employer may be required to prove when it is dragged to the CCMA are that:

• the rule that the employee is alleged to have broken existed at the time of the alleged offence
• the dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.

In the case of Moolman vs Nu Vision Aluminium (Pty) Ltd (2008, 9 BALR 805) the employer discovered that the employee was doing private work outside working hours and instructed him to resign and to go home. The arbitrator found:

• the instruction given to the employee amounted to a dismissal
• the employee had not been made aware of any rule prohibiting the carrying out of private work in his own time
• the dismissal was unfair.

This makes it clear that:

• Every company, partnership, sole trader, organisation needs to draw up its own Disciplinary Code
• Induct every employee as to its Disciplinary Code
• Keep proof that the above has been done so that, if a dismissed employee claims at the CCMA that he did not know the rules, the employer can prove that this is an invalid excuse.

A Disciplinary Code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. As required by Schedule 8 of the LRA, these penalties need to be appropriate in the light of the seriousness of the offence.

When designing and implementing your Disciplinary Code remember:

• The offences need to be clearly described
• The rules need to be reasonable and fair
• They need to be realistic so that it is possible for employees to follow them
• You should try to include all those rules which pertain specifically to your company/organisation
• To communicate the code to all your employees in a way they understand
• You should explain the reason for rules which employees could have trouble in understanding. For example, you may prohibit your employees’ from receiving visitors at work. If your reason is that visits interrupt work or that security could be compromised you should explain this
• To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.
• Ensure that, if you deviate from your disciplinary code, you have a solid and legally acceptable reason for the deviation. In the case of Magagula vs Department of Health (2004, 2 BALR 156) the employee was suspended without pay for three months for accepting a bribe. He referred a dispute to the Public Service Bargaining Council where the suspension was found to be procedurally unfair. This was despite the fact that the employer’s disciplinary code provided for dismissal (a stronger sanction than suspension) of employees taking bribes. The arbitrator based his/her award on the fact that the employer’s code only allowed suspension without pay to be implemented with the employee’s permission. Such permission had not been obtained and the employer offered no acceptable reason for this deviation from the code. The employee was therefore awarded compensation.

In view of the dangers involved in designing faulty disciplinary codes and in the implementation thereof it is crucial that all employers assign a labour law and industrial relations expert to:

• Check their Disciplinary Code for legal defects
• Add in rules that are missing
• Train their management in the interpretation and application of the code.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.