Must an employee be given the opportunity to reply to an allegation of misconduct before a written warning is issued?
Procedural and substantive fairness are important requirements in disciplinary proceedings, otherwise the disciplinary sanction may be considered to be unfair.
Purpose of Discipline
The purpose of a disciplinary code and procedure is to regulate standards of conduct and incapacity of employees within a company. The aim of discipline is to correct unacceptable behaviour and to adopt a progressive approach in the workplace. This also creates certainty and consistency in the application of discipline.
Because of the progressively corrective nature of disciplinary action, the sanction applied should also be progressive in nature. Depending on the severity of the offense and the circumstances under which it as committed, the sanction can range from a verbal warning through to a written warning, a final written warning and dismissal. Warnings do not necessarily have to follow the order of verbal – written – final written – dismissal, unless the employer has made provision for this procedure in his disciplinary code.
Parties’ Obligations
The employer needs to ascertain that all employees are aware of the rules and the reasonable standards of behaviour that are expected of them in the workplace. Some rules or standards such as that of displaying honest behaviour, do not have to be in writing.
The employee needs to comply with the disciplinary code and procedures at the workplace. The employee also needs to ensure that he/she is familiar with the requirements in terms of the disciplinary standards in the workplace.
Counselling versus Disciplinary Action
There is a difference between disciplinary action and counselling. Counselling will be appropriate where the employee is not performing to a standard or is not aware of a rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned.
Disciplinary action will be appropriate where a breach of the rule or standard cannot be condoned, or where counselling has failed to achieve the desired effect. Before deciding on the form of discipline, management must meet the employee in order to explain the nature of the rule or standard s/he is alleged to have breached. The employee should also be given the opportunity to respond and explain his/her conduct. If possible, an agreed remedy on how to address the conduct should be arrived at.
Warnings
If the employer’s disciplinary code states that for a first offence of misconduct a verbal warning must be given and for the second offence of a similar nature a written warning must be given, then for the third offence a final written warning then on the fourth offence dismissal, then the employer is generally bound to follow his own procedure.
Conclusion
Many employers (or managers) fail to inform the employee of the alleged offence and do not give the employee an opportunity to respond to the allegation before issuing a written warning. Such action is procedurally unfair.
Therefore, a written warning should only be issued after having followed a fair procedure, whereby the accused employee has been afforded the opportunity to present his/her case in answer to the charges against him/her.
