All allegations of misconduct must be investigated. Allegations of misconduct received anonymously must be ignored. A person bringing a verbal allegation must be instructed to put the allegation in writing. It must then be established whether the allegation constitutes misconduct or not.
(1) To identify misconduct, the following questions must be asked :
[a] has a rule or standard been broken?
[b] if so, is that rule or standard reasonable, lawful and attainable?
[c] if so, was the transgressor aware of that rule or standard?
[d] or could he/she reasonably be expected to have been aware of it?
[e] has the rule or standard been consistently applied by the employer?
If the answer to the above questions is “yes”, then an act of misconduct has been identified. Many employers confuse misconduct and poor performance. It is should be carefully noted as follows:
[a] in misconduct, the answer to the above five questions will be “yes”, and the act of misconduct will always be the fault of the employee. No employee breaks a rule or standard by accident, unless of course that rule or standard was not in place in the first instance, and the employee was completely unaware of it. In that case, no act of misconduct has been committed.
[b] in poor performance, the employee has not broken a rule or standard, but has failed to reach a required work performance standard in terms of quality or quantity of output. In poor performance, the reason for it can be due to outside factors over which the employee has no control, or it can be due to ill-health or injury, or incapacity.
Thus, misconduct refers to the employee’s behaviour in the workplace and has nothing to do with how well or how badly he performs the job. Poor performance refers to how the employee does the job and has nothing to do with his behaviour in the workplace.
Make certain that you only gather evidence that is relevant to the act of misconduct and that will enable you to prove your case at the disciplinary hearing. Evidence that does not support your allegations is useless and the must be discarded. Remember that you must prove the respondent (the accused the employee) guilty on the balance of probability, and therefore you require quality evidence rather than quantity evidence. If it is not a going to help in proving your case, then throw it out.
Witness statements must be taken down clearly and concisely in the language used by the deponent (the person who is making the statement) Check witness statements against one another and look for discrepancies. You do not want a situation where your witnesses contradict each other’s evidence. Prepare your witnesses properly, so that they clearly understand what is required of them at the disciplinary hearing and exactly what evidence they will give. It is a good idea to go through the procedure with your witnesses the day before the hearing.
Suspension of accused employee:
Do not suspend an employee unnecessarily. Suspension on a minor allegation of misconduct might find you on the wrong end of the CCMA if the respondent refers a dispute of unfair suspension to that body. Unfair suspension falls under the heading of unfair labour practice, and an unfair suspension may well render your procedure to be unfair – so be careful of suspending without good cause.
Suspension is only really justified in instances where you have reason to believe that the respondent will or may endeavor to interfere with or tamper with the evidence or witnesses, or he may attempt to intimidate your witnesses, or he may attempt to intimidate or victimise the complainant. It may also be found necessary to suspend in order to preserve the peace and harmony of the workplace, such as in cases of assault or sexual harassment.
Other serious instances such as theft or fraud will also justify suspension. Notice of suspension must be given to the respondent in writing, clearly setting out the reasons for the suspension and brief details of the allegations against him/her, and should include if possible, details of the date time and venue of when the disciplinary hearing will be held.
Correctly Charging the Respondent:
It is vital that the respondent be correctly charged from the beginning. Make certain that you have correctly identified the act of misconduct for what it is, and charge accordingly. If you attempt to change the charges or amend the charge sheet during the disciplinary hearing, your procedure will be rendered unfair.
Should the situation arise during the disciplinary hearing where it is discovered that the charges are incorrect, it would be better to revoke the proceedings and start again. Your reason for doing this would be, quite simply, that it is fair to the respondent to do so. For example, if any employee has been absent without authority, do not charge the employee with insubordination – the charge must be what it is, namely unauthorised absenteeism.
A word on insubordination:
Our experience has shown that very few employers are aware of exactly what insubordination is. Insubordination may be described as resistance to or defiance of authority or a disobedience, the refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer’s name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage.
In the Labour Appeal Court case involving CWIU and another v SA Polymer Holdings Pty Ltd T/A Megapack (1996), insubordination was defined as “a willful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority.”
The characteristics present in insubordination would be a willful, verbal refusal of instructions, a willful disregard of management authority, or disrespect, rudeness, rebellious or disobedient gestures, manner or attitude, dismissive gestures, walking away, abusive language, knocking the written instruction or notification of inquiry from the senior managers hand, or taking it and discarding it, addressing the senior manager or director or supervisor in a disrespectful manner.
That should be sufficient to identify whether the offense is in fact insubordination or not. At all times be reasonable. It must be noted that what we are dealing with is not an unreasonable refusal to obey, but rather we are dealing with the refusal based on what to the employee perceives to be sound reasons for a refusal.