Online Reporter
Trust Maanda
Legal Position
EMPLOYMENT code of conduct provides for disciplining of employees for misconduct.
The National Code of Conduct in Statutory Instrument 15/2006 lays down the objectives of disciplinary action.
These include that the disciplinary action must be progressive. The punishment for various acts of misconduct will differ depending on the gravity or seriousness of the offence.
Unless repeated, some offences require warnings before the ultimate penalty of dismissal is meted out.
The objectives of the code, among other issues include provision of machinery for careful investigation of offences before corrective/disciplinary action can be administered; or to ensure consistency, and prompt action by the responsible or administering official or committee on issues concerning discipline.
The objective is also to ensure equating an offence to the corrective action, allowing for mitigation or aggravating factors; or to provide guidelines on procedural and substantive fairness, and justice in handling disciplinary matters at the workplace.
The code provides for progressive discipline, which is a principle that disciplinary action must take a series of warnings and corrective action for offences before the decision to dismiss is reached for subsequent offences.
A warning will not be a punishment, but it is a notification that further breaches will be visited with a more severe punishment, and serves to remind the employee of what is expected of him or her, but which he or she departed from. If they commit a similar offence, they may get a final warning until they get a penalty of dismissal if they repeat the offence.
The National Code of Conduct provides that in general, disciplinary action should, in the first instance, be educational, and then corrective.
This means that the disciplinary action must be for the education of the employee, and then later corrective if they repeat the same offence.
If they do not reform, the penalty must be there to punish them when the earlier steps have proved ineffective.
In order to ensure uniformity and certainty, as far as is possible, similar offences committed in similar circumstances should be treated equitably through the award of similar penalties after taking into account mitigating and aggravating circumstances.
Many employers or employer organisations have a sector-wide code of conduct which is followed in disciplinary action. Some employers have registered company codes of conduct that are internal to their companies.
These codes of conduct invariably provide for the different types of punishment for different offences. The penalties may vary from a number of warnings up to dismissal.
Even though the code lays down offences that the employer can dismiss the employees on if they are guilty, that penalty is not obligatory, but is meant as a guide to employers and an employer may, at his or her discretion apply a lesser penalty for example, a written warning.
However, since the penalty is a guide, for offences which do not warrant dismissal, an employer may issue a verbal or written warning as the case may be.
Sometimes an offence may not warrant dismissal, but attract a final warning, but the employee may still objectively take a serious view of that offence and decide to dismiss.
As long as the employer’s discretion is exercised judiciously, the decision to dismiss will stand.
Where an employee imposes a more severe penalty than the one provided for, the employee must show that the misconduct of he or she was found guilty of did not go to the root of the employment contract, and that on that basis a penalty of dismissal was not justified.
At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment, and where such misconduct goes to the root of his or her employment contract.
The court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion.
An employer is entitled upon conviction of an employee of misconduct which goes to the root of their relationship entitled to dismiss him. The fact that the two penalties, for example, the final written warning and /or demotion and/or suspension without pay for a number of days or dismissal are penalties provided for the serious breaches, means that any of them can be lawfully imposed as a punishment for the offences in that class of cases.
However, the National Code envisages that discipline must be progressive. This helps the employees to correct their behaviour and reform, not simply to punish them.
By giving a warning to the employee, the communication will provide a platform for discussion of the expectation of the employer. If it is a written warning, it would serve to identify the problem and consequences.
Discipline should be educational, corrective and then punitive!
Trust Maandsa is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
