In Part 1 and Part 2 the importance and benefit of devising your own workplace rules and policies is emphasised, also introducing you to the codes of good practice annexed to the Labour relations Act (LRA), focusing on Schedule 8 – Code of Good Practice: Dismissal as the default fairness requirement for dismissals in the workplace.
In Part 3, rounding off the 3-part explanation of the importance of rules in the workplace, I endeavour to indicate how the contents of Schedule 8 can be utilised as the foundation for devising your own company specific workplace rules and policies, thereby creating a safe, secure and productive environment within which both employee and employer can optimally function and flourish.
General comment regarding dismissal
Within this context, the term “dismissal” is used to refer to any lawful termination of the employment contract by the employer and not only to disciplinary dismissals.
There are only 5 possible, fair and legal ways of terminating the employment contract of an employee, namely:
- Disciplinary dismissal, provided that a fair procedural and substantive process is followed.
- Retrenchment, provided that a fair procedural and substantive process is followed.
- Incapacity termination, usually related to medical or performance incapacity, provided that a fair procedural and substantive process is followed.
- Employment contract expired. The expiry of a fixed term contract, as well as where the employee reached the retirement age consistently practiced within the organisation.
- Negotiated departure. At any time, the employer and employee can negotiate the termination of the employment contract on mutually acceptable terms, as well as the conditions under which that should happen. It is however important that such termination of the employment contract can only happen legally and fairly when there is a meeting of minds regarding the termination. This is however a topic for another article dealing exclusively with this topic.
Company specific governance regarding conduct and capacity related dismissals
As indicated, the provisions of Schedule 8 represent the basics and generics of ultimately dealing, legally and fairly, with dismissals in the workplace, with emphasis on conduct and capacity related dismissals.
Working environments however differ substantially from dispensations such as predominantly labour intensive to capital/technologically intensive, organised labour environments to environments where no employee representative structures operate, blue collar to white collar, local, indigenousness management regimes to multi-national management structures and the list goes on.
The success of a business or undertaking is, amongst others, inextricably linked to its stability, profitability, degree of labour peace, workforce productivity and business sustainability. As far as a happy and productive workforce is concerned, there needs to be legal certainty and security, not only in the minds of the employees making up the workforce, but also as far as the management of the business is concerned.
Like the proverbial fish in the water, its ultimate happiness and survival depends on its confinement to the parameters of the environment where it has the best prospect of surviving and flourishing, i.e. the water.
By way of another analogy, it is possible to produce a generic manual for the care of an automobile, dealing with the common denominators of maintaining the “run of the mill” type of vehicle. However, a product and model specific manual is preferable and in fact, essential, for the proper care of the vehicle concerned.
Both above-mentioned examples presuppose the creation and existence of specific rules governing the specific situation, in order to derive optimal benefits for all concerned.
Rules in the workplace follow the same logic. Creating industry or company specific rules departs from the generic platform provided in Schedule 8, annexed to the LRA, ensuring that the essentialia are covered, but then continues to customise the industry or company’s specific rules and policies in consultation with the workforce concerned.
Consultation does not necessarily imply that the employer must negotiate its workplace rules with the workforce, but it serves the purpose of exchanging relevant views, insights and suggestions with the workforce to enable the employer to arrive at an informed decision regarding the nature and contents of the workplace rules.
As indicated earlier in this article, a consultative outcome regarding workplace rules is considerably more likely to be accepted, co-operated with and internalised, than workplace rules imposed unilaterally on the workforce. Consultatively devised workplace rules also serve as a deterrent to those elements within the workforce who are prone to challenge authority, as there is no room left for such a challenge, at least not a challenge with any prospect of success.
Most employers profess that their human resources are their most important asset. That being the case, why not create an environment within which both the employer and employee feel safe and secure, because the boundaries within which to operate and prosper are clearly drawn?
The sad alternative is a lack of clear boundaries, leading to insecurity as well as malicious opportunism amongst some employees, with the employer stumbling from one labour crisis to the other. This breeds inconsistent labour practices and the inconsistent enforcement of workplace discipline, leading to the employer’s unnecessary exposure to the (external) statutory dispute resolution mechanisms (CCMA & Labour Courts), with the reputational ramifications associated with it.
Make an investment in a happy, productive and all-round prosperous working environment by heeding the advice contained herein and become an employer of choice.