Employers have a right to implement workplace policies to regulate employees’ conduct. The breach of such policies is usually the cause of disciplinary proceedings because employers use the policies to determine misconduct and categorise it accordingly. So, what happens if the company has not implemented any policies? Can the employer still discipline the employees?
Employers should have established disciplinary rules and policies in accordance with the Labour Relations Act (LRA), Schedule 8, item 3(1) of the Code of Good Practice. Such rules should be communicated to the employees. However, the code also states that some rules or standards may be so well established that it is unnecessary to communicate them. For example, it is well known and established that an employee should not steal from the employer. Furthermore, the Constitutional Court in Chirwa v Transnet Ltd & Others (2008) 29 ILJ 73 (CC) stated that the provisions of the LRA are based on the established principles of natural justice in our law. Natural justice can be summarised as an innate sense of what is right, wrong, and fair.
The employer’s focus should be to ensure fairness in procedure and substance when implementing disciplinary proceedings. Procedural fairness would be found in the employer investigating whether misconduct has occurred; notifying the employee of the allegations using a language that they understand; giving the employee a chance to state their side of the story in response to the allegations, and giving the employee sufficient time to prepare their response and to seek the assistance of a trade union representative or a fellow employee.
Substantive fairness will always be dependent on the facts of each case; however, it should be noted that the burden to prove that the standard or rule that the employee allegedly breached is well known, or ought to have been known by the employee, remains with the employer. Furthermore, the formulation of the charge(s) need not be technical or derived directly from a policy so long as it is clear and understandable to the employee.
This approach was endorsed by the court in Woolworths (Pty) Ltd v CCMA  10 BLLR 963 (LAC), where the court states, “Unlike in criminal proceedings ………., the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes mentioned above. It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences…….”
In conclusion, an employer’s right to discipline their employees is not taken away by the fact that they have not yet implemented policies. Employers need to ensure fairness by being guided by the LRA. However, employers should implement and communicate these policies to their employees to mitigate potential misconduct.
Article By: Buhle Masuku
Dispute Resolution Official – CEO Durban