Employers all too often initiate a disciplinary procedure without first establishing that they are faced with a case of misconduct.

For it is only cases of misconduct that can be dealt with by way of a disciplinary hearing procedure. It follows that one will never know for sure whether a disciplinary process is in fact the correct process to follow in any given set of circumstances, unless a prior assessment of the case has confirmed that one is indeed dealing with a case of misconduct. So what is misconduct? Misconduct, quite simply, is a blameworthy act or omission on the part of an employee. However, both the act/omission and the blameworthiness must be provable on the balance of probabilities. An employer may know for a fact that an act of misconduct has been committed, but be unable to prove it.

The proving of blameworthiness flows from either company rules or acts, and omissions are generally accepted as always being of a blameworthy nature. However, proof of knowledge of a company rule is frequently a crucial aspects of a disciplinary case when an alleged offender denies knowledge of the rule she/he is accused of having breached. It is for this reason that employers must find ways of securing proof that employees have been informed of company rules and regulations, and furthermore, are in possession of evidence proving that employees have knowledge of such rules. Typically, employers ensure knowledge of company rules by way of induction programmes, briefing sessions, training and employment contract terms and addendums.

Understandably, an employee cannot be accused of breaching a company rule in respect of which there is no proof that the employee had knowledge thereof. Blameworthiness itself arises from either negligence or intent. International negligence is a contradiction in terms. Negligence as an act of alleged misconduct amounts to the employer accusing employee of acting in a manner short of how the employer could have reasonably expected the employee to act.

Many disciplinary cases are ill conceived due to the fact that these fundamental principles have been overlooked. One must first establish that one has evidence to prove both the act/omission and the blameworthiness, on the balance of probabilities, before launching into a disciplinary hearing will ordinarily flounder.

For further information on Unfair Labour Practice or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za