Drafting a proper disciplinary notice can be frustrating. Many employers would simply pass the responsibility to external advisors. Yet, provided a few fundamentals are taken care of, there is no reason why managers could not do it themselves and leave only the most complicated cases for external parties to assist with. This note looks at some of the most common problems that arise in connection with disciplinary notices and proposes a number of best practice solutions.
How much detail is required in a disciplinary notice?
The Code of Good Practice: Dismissal is not particularly helpful here. It only states (item 4) that:
the employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representa-tive, or fellow employee.
As a general rule, the allegations should be sufficiently detailed to allow the employee to prepare a response and should include full details of the incident leading up to the disciplinary or incapacity process. It is better to give too much than too little information. Too little information may result in requests for postponement, or complaints of procedural unfairness.
In the case of misconduct, it is advisable to include alternative allegations, especially if the transgression fits into more than one category of the employer’s disciplinary code. For example, instead of just alleging ‘gross negligence’, include ‘negligence’ as an alternative and perhaps ‘failure to comply with company procedures’ as a further alternative. In this way, if the main allegation cannot be proved, there are two others to fall back on and for which there might be sufficient evidence. Be careful not to duplicate the allegations, however, by ‘charging’ the employee with all three allegations for the same transgression!
If, in terms of the employer’s code, dismissal is the recommended sanction for a trans-gression, this should be stated in the notice, as the employee needs to be aware of the maximum penalty he or she faces.
Format of the notice
We would recommend that the notice be structured as follows: firstly, provide background facts about what the employee allegedly did wrong, with details of time, place, and so forth. Next, state which of the employer’s rules may have been broken. As stated above, if the same incident may have broken more than one rule, put these in the alternative with the most serious being the main allegation and the rest the alternative allegations. For example: ‘By behaving in this manner, you have committed a gross dereliction of your duties as manager; alternatively, acted negligently’.
May the notice be amended?
An investigation need not be a one-off occurrence and the employer may add or vary the factual allegations as the investigation unfolds. Changes may even be introduced once the hearing has commenced, but this should be the exception. More time should rather be spent investigating the matter before charges are produced. In Leibbrandt & Kemptonpark-Tembisa Metropolitan Local Council 2000 (4) BALR 452 IMSSA, a case dealing with the amendment of allegations during the hearing, the arbitrator accepted that new ones could be introduced, but cautioned that it would not be fair if, in a disciplinary enquiry, the goal posts are constantly shifted in response to the defence put forward by the accused employee.
To avoid unnecessary changes to the disciplinary notice, the investigation should be completed before the disciplinary notice is issued. If changes are expected but it is necessary to commence with the hearing, indicate in the notice that additional allegations could follow. Where changes are introduced that are substantial, the chairperson should offer the employee an extension of time to prepare.
Timing of the notice: for how long can one delay issuing a notice?
Employers should not allow excessive periods to pass between the time the alleged trans-gression comes to their attention and the time disciplinary proceedings are commenced with. As a general guideline, further investigations (where necessary) should be conducted as soon as possible after the transgression becomes known. If a delay is expected in the completion of investigations, the employee should be notified of this – also if he or she is on suspension. If there is a lengthy delay between the transgression and the hearing, there should be a good explanation for it; e.g. lack of cooperation by the employee, or the complexity of the investigation.
De-criminalising disciplinary allegations
Charging someone with a criminal offence in a disciplinary hearing creates potential problems, e.g. there could be pressure on the employer to delay the hearing until the criminal trial has been finalised; arbitrators will most likely raise the level of proof and insist on ‘strong probabilities’ before finding the employee guilty; and, importantly, all the elements of the criminal charge must be proved.
A better option is to frame the transgression in a manner that shows that the complaint
really concerns the employee’s failure to comply with his or her contractual obligations, or other terms of employment applicable to him or her (e.g. a code of conduct or ethical code). For example, instead of charging someone with fraud for falsifying his or her CV, the allegation could refer to ‘deliberate misrepresentation of details in CV’. Instead of theft, the allegation could simply refer to ‘dishonest behaviour’, ‘failure to act in good faith’ or, where relevant, ‘unauthorised removal of the employer’s property’. These remain serious allegations that could justify dismissal if proven.
Here are some of the most common mistakes managers make in connection with discipli-nary notices –
• Insufficient details of the transgression are provided.
• The notice is issued prematurely, before the investigation is completed.
• Alternative transgressions are not used.
• The most serious transgression is proceeded with, without proper investigation or evidence.
• Transgressions are framed as criminal charges, without sufficient evidence that would satisfy all the elements of the charge.
• Misconduct is confused with incapacity.
• Charges are duplicated.
• The evidence presented does not match the transgression as stated in the notice.
Barney Jordaan for www.labourwise.co.za