CEO last touched on this topic during March 2016 when an article was published.

 

We have, however, recently received an inquiry from one of South Africa’s largest clothing retailors on the subject, and as such, we felt a proper recap and expansion article might be in order.

 

Progressive discipline is a term that is used in preparation of every CCMA or Bargaining Council matter, as well as by the Commissioners themselves, when narrowing the facts and ultimately issuing an award.

 

Progressive discipline is a system of discipline where the penalties increase upon repeat occurrences and vests itself in the South African Labour Law as a form of rehabilitation and a system in which employees are encouraged to correct their behavior, rather than proceeding to immediate dismissal of those employees.  This system is not optional, but rather embedded in Scheduled 8(3) subsection (2) & (3) of the Labour Relations Act where it is stated:

 

(2) The courts have endorsed the concept of corrective or progressive discipline.

This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.

 

(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.

 

Progressive discipline is best executed when employees are well informed of the rules, regulations and policies in the workplace.  Thus, emphasising the importance of properly drafted policies and a disciplinary code.

 

Progressive discipline ranges from a verbal to a written, and ultimately, to a final written warning.  This may also include unpaid suspensions as a disciplinary sanction (therefore not a suspension pending a disciplinary hearing which is with full pay) as well as demotion as an alternative to dismissal.

 

All these “sanctions short of dismissal” could be applicable to various types of misconduct.

 

A common misperception is that progressive discipline entails that all types of misconduct must be met with the same chronological issuing of warnings i.e., verbal to written to final.  This is, however, completely incorrect. The application of progressive discipline depends on various factors including, but not limited to, severity of the transgression, the industry the employer finds themselves in (for example health and safety requirements on mines etc.), the position of the employee, the seniority of the employee as well as the experience and/or qualification which that employee holds.

 

It is generally accepted that the more experienced and/or qualified an employee is, the higher the expectation is that misconduct, especially when looking at transgressions such as negligence, will not be committed by such an employee.

 

In certain instances, the employer may even abandon the process of progressive discipline, due to the severity of the misconduct.

 

The Labour Relation Act alludes hereto in Schedule 8, where it states:

“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”

 

This abandonment of the process of progressive discipline has also been reiterated by the courts where they have stated that (case references can be provided upon request):

 

  • “a final written warning is not a requirement for dismissal and that the employer is entitled to take into account the cumulative effect of acts of negligence, inefficiency and/or misconduct”,
  • “where an employee dishonestly posed as an attorney, and there was nothing more than an aggressive denial, and a continuation of dishonesty that a lesser, progressive sanction would not have been justifiable”, and
  • “the principal that a sanction aimed at correction and rehabilitation is of no purpose when an employee refused to acknowledge the wrongness of his/her conduct”.

 

From the above it is therefore clear that, albeit a standard requirement to follow progressive discipline when disciplining an employee, there are certain exceptions that exists.

 

All situations should be considered individually, and the merits evaluated.

 

Various aggravating and/or mitigating circumstances may also influence the type of sanction that is to be imposed.

 

For any queries, always feel free to make contact with your local CEO office or visit our social media platforms for further articles, video’s as well as up to date information.

 

Article by: Jaundré Kruger

Provincial Manager – FS/NC