Progressive discipline – journeying together for the common good

Progressive discipline – journeying together for the common good

Introduction

It is often proclaimed by employers that its human resources are its most important asset. Consequently, significant financial resources are assigned to attract and keep employees who contribute meaningfully to the prosperity and well-being of the organisation.

Lucrative share allocation and other incentive schemes, head-hunting practices and lock-in arrangements are but a few of the length’s employers go to in order to ensure that they attract and retain human resources of optimal value and is regarded as the employer of choice.

Once these human resources are attracted and employed, the employer, understandably, wants these resources to live up to expectations without fault or falter and any deviation from this expectation is normally met with some degree of disappointment and even dismay.

Unfortunately, human beings are not robots or machines, no matter how sophisticated and professionally established they may be.

Veering off the mark at times is to be expected and it would be contra-productive to simply discard a malfunctioning human resource the moment it does not comply fully to behavioural standards.

Even machines are regularly serviced and repaired in order to keep it in production and discarding and replacing it is usually left as a last resort – why should our human resources be treated differently?

If there is a legal requirement for some extent of tolerance to be exercised or latitude to be given by the employer when being confronted with behavioural problems in the workplace, what is the margins and parameters of this tolerance or latitude?

This introduction brings me to the topic of progressive discipline, which I equate to a journeying together by employer and employee at times where conduct on the part of the employee becomes a matter for corrective attention.

When researching the concept of progressive discipline, I scanned through close to 60 Labour Appeal Court (LAC) cases where, to a varying degree, the concept of progressive discipline received the court’s attention.

What I gleaned from this research can be summarised as follows:

The importance of the guidelines contained in Schedule 8, annexed to the Labour Relations Act (LRA)

Understandably, my focus will be on the employee’s conduct and the disciplinary considerations related to it.

This Code of Good Practice places emphasis on inter alia the following:

• The uniqueness of every situation (“one size fits all” does not apply) – Par 1(1) of Schedule 8.
• Employer and employee treating each other with mutual respect – Par 1(3) of Schedule 8.
• The premium placed on both employment justice and efficient business operations – Par 1(3) of Schedule 8.
• The necessity of adopting disciplinary rules in the workplace which establish the standard of conduct required from employees – Par 3(1) of Schedule 8.
• The rules related to discipline in the workplace must create certainty and consistency in the application of discipline – Par 3(1) of Schedule 8.
• The endorsement of the courts of the concept of corrective or progressive discipline. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings – Par 3(2) of Schedule 8.
• That repeated misconduct will usually warrant warnings being issued, graded according to degrees of severity – Par 3(3) of Schedule 8.
• That dismissal should be reserved for cases of serious misconduct or repeated offences – Par 3(3) of Schedule 8.
• That it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such a nature that a continued employment relationship is made intolerable – Par 3(4) of Schedule 8.
• That a dismissal will not be fair unless it meets the requirements of Section 188 of the LRA. Section 188(2) of the LRA requires that any person considering whether a dismissal was procedurally and substantively fair, must consider any relevant code of good practice in terms of the LRA (Schedule 8 being one such code) – Par 3(4) of Schedule 8.
• That besides consideration given to the gravity of the offence, the employee’s circumstances (including length of service, previous disciplinary record, and personal circumstances), the nature of the job and circumstances of the infringement itself must be considered – Par 3(5) of Schedule 8.
• That disciplinary penalties should be applied consistently – Par 3(6) of Schedule 8.

Sidumo-principles finding application within context of progressive discipline

Quite a few of the LAC-judgements which I read and where the concept of progressive discipline received some attention, made reference to the well-known Sidumo-case, properly cited as: Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) CC.

This case placed emphasis on the considerations which a decision maker has to resort to when determining the appropriate sanction.

I dealt in more detail with this particular Constitutional Court case in my blog titled: “Sidumo-considerations – 7 aspects to pay attention to when considering the appropriate sanction in a disciplinary matter”, which aspects I quote hereunder for ease of reference:

• The importance of the rule having been breached.
• The reason why the employer selected dismissal as the appropriate sanction.
• The basis of the employee’s challenge to the dismissal.
• The harm caused by the employees conduct.
• The extent to which additional training and instruction may prevent a re-occurrence of the offence committed.
• The effect of dismissal on the employee.
• The service record of the employee, with emphasis on long service.

The court also made the following remarks pertaining to the application of progressive discipline per se:

• The absence of dishonesty is a significant factor in favour of the application of progressive discipline, rather than dismissal. So too is the fact that no losses were suffered.
• What counted against Mr Sidumo was (inter alia) the fact that he did not own up to his misconduct – thus not really showing the remorse expected of him.
• There was however no indication in argument before the court that the principle of progressive discipline will not assist to adjust Mr Sidumo’s attitude and efficiency, going forward.

What do we learn, apart from Schedule 8 and Sidumo, about the appropriate approach to progressive discipline emanating from relevant case law?

Having regard to the above-mentioned requirement contained in Schedule 8 to balance employment justice and operational efficiency, relevant case law (with specific emphasis on the pronouncements of the LAC) indicated in 65% of cases researched that employers were criticised for not considering progressive discipline appropriately when deciding on the sanction to be imposed.

In the remaining 35% of cases, it was found that the circumstances were such that the application of progressive discipline justifiably could not save the employee from dismissal.

Aspects to consider in favour of applying progressive discipline and insuring employment justice:

• Where there is a reasonable prospect of success in rehabilitating the behaviour of the employee by resorting to a disciplinary measure short of dismissal.
• Where feasible, to grant the transgressing employee at least an opportunity to change his/her behaviour and so preserve employment.
• Always give at least proper consideration to the effect progressive discipline could possibly have in a particular case and make such consideration part of the finding’s reasoning.
• Consistent application of progressive discipline is of utmost importance as far as substantive fairness is concerned.
• Where the employer’s disciplinary policy explicitly endorses the concept of progressive discipline, the employer will be held accountable to own up to such requirement.
• Give due consideration to all relevant circumstances pertaining to the transgression, over and above the gravity of the offence.
• Remain mindful of the fact that the adjudicator will question the appropriateness of dismissal in each and every case.

Aspects justifying a sanction of dismissal for the sake of ensuring operational efficiency:

• Where the transgression is of such a serious nature that it renders the continuation of the employment relationship intolerable.
• Issuing a final warning on top of a final written warning already issued for a particular offence, defeats the purpose of progressive discipline.
• While dismissal does not automatically follow on a final written warning, dismissal remains a factor to be considered within context of progressive discipline.
• Where a serious offence has been committed with the absence of remorse and where repetition and premeditation played a role, any sanction short of dismissal will amount to no sanction at all.
• It is important to understand that the application of progressive discipline does not preclude the imposition of dismissal, even for a first offence – progressive discipline however remains an important consideration but does not necessarily preserve employment in every case where it is applied.

In conclusion

Employing the right human resources through proper screening and selection would go a long way in creating a stable and productive workforce.

Undue and unnecessary levels of staff turnover can however be extremely costly and will undoubtedly have a devastating effect on workforce stability and could create a wrong perception in the market, such as associating the employer with adopting a “hire & fire” policy.

It therefore makes sense to preserve, cultivate and nurture the appropriately selected human resources, where at all possible. A slightly pessimistic way of emphasising this point is quoting the saying: “better the devil you know”.

Journeying the employment road together where reaching the destination is an attainable goal is arguably far more beneficial than exploiting the labour market opportunistically in the short run, but losing face, reputation, and workforce stability in the long run.

Having said that, it is also true that just as our bodies rid itself of undesirable objects in order to cleanse itself and stay healthy, an organisation needs to do the same and must refrain from accommodating elements which are not susceptible of proper assimilation. The only prerequisite is discernment and circumspect.