Because some employers are often not very enthusiastic regarding the formal creation of policies and procedures governing the way we do things in the workplace (often referred to as superfluous “red tape”), I need to provide a bit of philosophical motivation by way of introduction – so bear with me.
Arguably, the absolute best time to formulate and establish rules for war, is when there is peace. Similarly, the best prospect of establishing rules for the benefit of all concerned, is when such rules are the product of deliberations which involved the input and interests of those who will be governed by the rules. Rules formulated in this way also have the highest probability of being accepted and adhered to.
Rules should never be formulated, placing self-interest at the centre. Rules need to have a common purpose or common objective which is generally acceptable in a free and democratic society.
There also needs to be a commonality among those subjected to it as far as the understanding and interpretating of the rules are concerned. This is best illustrated in the world of sport:
You cannot play rugby by applying soccer or cricket rules. Similarly, you cannot allow all participants in a particular game to each apply their own rules to the game – that will lead to utter chaos.
If the above philosophical reasoning makes sense to you, consider applying it to workplace rules and notice how comparatively appropriate this reasoning is.
Where employers found it difficult to effectively discipline employees, it appears that there either were no common rules governing the behaviour concerned, or that the rules that were in place had been imposed unilaterally (and even inconsistently) without creating a mutual understanding regarding the rationale for the existence of the rules.
Where properly established workplace rules are in place, the boundaries of acceptable behaviour are clearly drawn and when these boundaries are challenged (which invariably happens), those in breach of these rules can effectively be brought to book, with no loophole through which to escape liability.
From a substantive fairness point of view, workplace rules play a determining role:
Any person who is assigned the authority to consider substantive fairness in a disciplinary matter has to be objectively convinced of the following pertaining to workplace rules:
- That a rule which is allegedly breached exists in the workplace; and
- That the rule in question is a legitimate rule; and
- That the rule in question was known to the employee at the point of transgressing the rule; and
- That the employee breached the rule in question; and
- That no circumstances exist reasonably exonerating the employee from liability for breaching the rule (no legitimate defence); and
- That the rule concerned is consistently applied in the workplace.
It is so much easier for a decision maker in a disciplinary matter to overcome these 6 “hurdles” and confirm substantive fairness, when dealing with workplace rules that are properly established, reasonably understood, and agreed to (signed for). In fact, the very existence of such rules in the workplace is an effective deterrent for challenging or breaching these rules, since the chances of getting away with it is practically non-existing.
Rules embodied in employee relations policies are designed to govern employee behaviour within disciplinary context and must be distinguished from so-called “Standard Operating Procedures” (SOP’s) used as “operating manuals” for employees when executing their daily duties – thus task-driven directives.
The significance of Schedule 8 annexed to the Labour relations Act (LRA) in respect of workplace rules.
The drafters of the LRA probably foresaw that some employers may not go to the trouble to formulate their own workplace rules governing employee behaviour, hence they annexed guidance material to the LRA addressing this void.
The most important of these guidelines, as far as workplace rules pertaining to discipline are concerned, is Schedule 8 – Code of Good Practice: Dismissal. Although Schedule 8, as well as the other codes of good practice annexed to the LRA, do not carry the status of labour legislation, CCMA commissioners and labour court judges generally expect adherence to these guidelines in order to ensure that fair labour practices prevail in the workplace. In fact, Section 188(2) of the LRA specifically makes it peremptory for any person considering the fairness of a dismissal to take into account any relevant code of good practice issued in terms of the LRA, which includes Schedule 8.
While Schedule 8 functions as a “default” set of workplace rules regarding dismissal, it also creates a proper basis or foundation to elaborate upon when establishing and customising your own company’s workplace rules.
What is covered under Schedule 8 regarding workplace behaviours?
The guidelines in Schedule 8 generally and primarily depart from the premise of a “dismissal”, as the ultimate consequence of non-compliant employee behaviour, based on conduct and capacity.
In its introductory paragraph (par 1) the code stresses the generic nature of its guidelines and emphasises that where codes and procedures for dismissal are developed through collective agreements, it should take preference. It further suggests that when dealing with the subject of dismissal, a balance needs to be struck between employment justice and the efficient operation of the business.
Without getting into any detail of the content of Schedule 8 (which contains subjects for other blogs in future), I give you a quick rundown of the remainder of Schedule 8’s content:
- Par 2 deals with fair reasons for dismissal.
- Par 3 deals with disciplinary measures short of dismissal.
- Par 4 deals with fair procedure pertaining to dismissals, which provides the minimum requirements for conducting a disciplinary hearing.
- Par 5 deals with the keeping of disciplinary records.
- Par 6 deals with dismissals within context of industrial action.
- Par 7 deals specifically with guidelines in cases of dismissal for misconduct, focussing on the requirements for substantive fairness alluded to earlier on in this blog.
- Par 8 deals with probation.
- Par 9 deals with dismissals for poor work performance.
- Par 10 deals with incapacity (ill health or injury) in general terms.
- Par 11 deals with dismissals related to ill health or injury.
Effectively “playing the game of employee relations” needs proper rules to keep every participant in check – both employer and employee. This creates security and certainty, which ultimately lead to productivity and prosperity.
You will be well-advised to create your own company-specific employee relations policies and using the framework of Schedule 8 would be a good place to start.
