Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice.
Employers should have a Disciplinary Code
Schedule 8 of the LRA further stipulates that all employers should adopt disciplinary rules that establish the standard of conduct required of their employees. Obviously, an employee cannot be disciplined for breaking a rule that he or she was unaware of and therefore, it is important that the employer's Disciplinary Code and Procedure is communicated to all employees in writing and in a language they can clearly understand.
Examples of misconduct
Types of misconduct may differ from company to company and there is no complete list of the types of misconduct an employee can commit. Specific forms of misconduct would thus be dependent on the type of industry the company is operating in, its culture and specific workplace rules and regulations.
Typical examples of misconduct are theft, fraud, assault, wilful damage to company property, intimidation, insubordination, unauthorised absenteeism, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or narcotic substance, arriving at work with the smell of alcohol on the breath, wilful poor work performance and sexual or racial harassment, to name but a few.
How to regulate misconduct
Misconduct can be managed by a company's Disciplinary Code, which should highlight the various forms of misconduct, as well as further elaborate upon the disciplinary action imposed should an employee be found guilty of such misconduct.
Disciplinary Code provides framework
Where there is misconduct, a rule, norm, policy or practice needs to be in place, which an employee can break either by way of omission or commission. A Code would provide a framework, setting out how employees are to conduct themselves and behave at work, as well as the procedures to be adopted in addressing such misconduct. In this way, employees have certainty regarding the consequences of any unacceptable behaviour in the workplace and cannot plead ignorance to what constitutes misconduct.
Both employers and employees have rights
Misconduct, if not properly and fairly managed, can become a serious problem in the workplace. It is important to bear in mind that although employees have the right to fair treatment, employers have the right to expect satisfactory work performance and conduct from their employees.
May 2, 2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.