Codes of different types constitute a substantial part of labour legislation. Therefore employers need to know these codes and understand their obligations under these codes. Labour legislation contains, amongst others, codes on retrenchment, picketing of strikers, sexual harassment and dismissal.

But what is a code? Is it a law or is it something less than a law? The Collins Concise Dictionary defines a code as “a conventionalised set of principles or rules”. This implies that a code is similar to a law and must be obeyed. However, many employers treat the South African labour-related codes as mere guidelines because the word ‘should’ is used instead of the word ‘must’. For example, the Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act (LRA) states that “All employers should adopt disciplinary rules….” rather than ‘must adopt disciplinary rules’. However, because the CCMA and the Labour Courts take the codes so seriously it is folly for employers to treat these codes as anything short of gospel.

Indeed, even if the law did not require employers to formalise workplace rules it would be essential for employers to do so as part of a system for keeping order in the workplace. Properly designed and clearly communicated rules serve to set the standards of conduct expected from employees.

The LRA’s Dismissal Code goes further to say that “An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood.”

Two things that an employer is 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 Martens Vs Nel (1998, 9 BALR 1167) Martens was a bartender in a nightclub. He was dismissed for flirting with customers. He claimed at the CCMA that he had never been informed of any rule prohibiting this conduct. The arbitrator found that the dismissal was unfair because Martens had not been given the rules relating to behaviour towards customers. The employer was ordered to pay Martens 10 months’ remuneration in compensation.

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 the Disciplinary Code for your organisation 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 language 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.

Assign a labour law and industrial relations expert to:

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

To book for our Durban seminar on 19 March 2015 on AVOIDING WORKPLACE REVOLUTION please contact Ronni on ronni@labourlawadvce.co.za or 084 521 7492.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.

This article first appeared in The Star.