1. Name and current position in WCED.

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2. Describe your experience, if any, in dealing with discipline at yourinstitution.

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EXERCISE 1

Introduction:

3. What are your expectations of this specific course?

A

B

C

D

E

DEPARTMENTAL PURPOSE & OBJECTIVES

Decentralise the function to institution level as per relevant legislation (PSCBC Resolution 2/99)

Adequately equip managers with knowledge of relevant legislation and terminology

 

Equip managers with skills & knowledge to deal with discipline at workplace effectively

Distinguish between different roleplayers and functions

Practical exposure relating to discipline at the workplace

TERMINOLOGY1. Law of natural Justice

• These are rules of procedure and evidence that dictates fairness in a disciplinary process.

2. Audi Alteram Partem • This means to hear the other side. Both sides must be heard,

but they must both be heard equally and fairly.• Evidence

• Evidence is the information or facts on which a decision can be made. Such information is entered into evidence to prove

or substantiate the existence of facts that would prove or disapprove an allegation or claim.

 

4. Witness• A witness is any person that can provide verbal information on the

fact in question.• Documentary Evidence

• A document is any book, map, plan, drawing, photograph letter or piece of paper that can provide information on a fact in question.

• Prima Facie Evidence • This means at first instance, or at first glance. This evidence can be

regarded as almost conclusive, unless the other party can provide a satisfactory answer to the fact being stated

• Hearsay Evidence• Evidence that is given by a person who did not experience the

event or fact in question. It is evidence of which the value depends on the credibility of another person.

8. Finding • The decision that is taken on whether or not an allegation is

true. The finding for the purpose of discipline, can only be guilty or not guilty.

• Burden of Proof • The person that makes the allegation must prove his

allegation. This means that the accuser must provide evidence of his allegation. He therefore carries the burden of

proof• Balance of Probabilities

• This is the amount of proof that must be provided for the accuser to satisfy his burden of proof. This means that the

presiding officer must rule in favour of the most probable version presented to him. The balance of probabilities is 51%.

Where it can not be determined which version is more probable (in other words the case is 50/50), it must be ruled

that the accusing party has not satisfied their burden of proof.

11. Sanction • The sanction is the “sentence” that a person is to receive, once

they have been found guilty. This could be either corrective, punitive or both.

• Corrective Sanctions • This is something that essentially adds to the person such as a

warning or counselling. It is intended to correct his behaviour by assisting him to do so.• Punitive Sanction

• This is something that takes away from the person such as suspension, a fine or dismissal. It is intended to punish rather

than correct.• Meeting

• This is the least formal of the two. The rules of evidence may be applied if the situation is called for. The sanction that can

be given is usually corrective in nature.

15. Hearing

16. A hearing is a formal process, where the rules of procedure and evidence are usually strictly applied. The sanction of a

hearing will usually be punitive.

17. Appeal

An appeal, a process by which a person applies to a higher authority than the one who gave the sanction. In such an application, the person will usually ask for the finding and

sanction to be set aside or reduced.

Point in Limini• Is an material issue of Fact or Law which must be determined before the continuation of the proceedings.

EXERCISE 3 A. DEFINE IN YOUR OWN

WORDS THE PURPOSE OF DISCIPLINE.

B. WHAT ARE THE PRINCIPLES OF HAVING A DISCIPLINARY CODE AND PROCEDURE?

THE PURPOSE OF DISCIPLINE

The purpose of discipline: it is essentially:

to support constructive labour relations in the public service;

to promote mutual respect between employees and between employees and employer;

to ensure that managers and employees share a common understanding of misconduct and discipline;

to promote acceptable conduct;

to provide employees and the employer with a quick

and easy reference for the application of discipline;

to prevent arbitrary or discriminatory actions by managers toward employees.

ROLEPLAYERS & FUNCTIONFUNCTIONS : WCED [DIRECTORATE : LABOUR RELATIONS]

SERIOUS DISCIPLINARY TRANSGRESSIONS/MISCONDUCT [PSCBC RESOLUTION 2/99]

DISCIPLINARY HEARING INITIATOR [EMPLOYER REPRESENTATIVE

PRESIDING OFFICER INVESTIGATION WHERE RELEVANT

  APPEALS

CHIEF DIRECTOR : HUMAN RESOURCE MANAGEMENT

DISPUTES PS – GPSSBC

 

MANAGER / SUPERVISOR       LEGISLATION

PSCBC RESOLUTION 2 OF 1999    FUNCTIONS

       ACCOUNTABILITY 

      MANAGE DISCIPLINE AT WORKPLACE         ENSURE THAT CORRECT PROCEDURES ARE

FOLLOWED ACCORDING TO RELEVANT LEGISLATION AND/OR COLLECTIVE

AGREEMENTS

       DISTINGUISH BETWEEN THE DIFFERENT FUNCTIONS OF ROLEPLAYERS

TRADE UNIONS     FUNCTIONS

       REPRESENTATION OF MEMBERS -         ELECTED SHOPSTEWARDS TO REPRESENT

WORKERS IN THE WORKPLACE IN RESPECT OF INDIVIDUAL DISCIPLINARY PROCEDURES (COLLECTIVE AGREEMENTS)

         OBSERVERS         ADVISORS 

Public Service Unions PSA DENOSA NEHAWU PAWUSA NUPSAW

IN ADDITION TO THE ABOVE, THE EMPLOYEE MAY BE REPRESENTED BY A FELLOW EMPLOYEE OR A REPRESENTATIVE AS STIPULATED.

THE ACCUSEDRIGHTS:

1.              TO BE REPRESENTED AT THE MEETING;    2.              AUDI ALTERAM PARTEM RULE;    3.              FAIR PROCEDURE.    

FRAMEWORK

FIRSTLY BY YOURSELF AND THEN WITHYOUR PARTNER, DISTINGUISH WHAT YOUDEEM AS MANAGER/SUPERVISOR TO BECONSIDERED AS:

A. SERIOUS TRANSGRESSIONS [HEAD OFFICE]

B. LESS SERIOUS TRANSGRESSIONS [WORKPLACE LEVEL]

C. GREY AREAS

EXERCISE:

EXERCISE : 4

PROGRESSIVE DISCIPLINE

PROCEDURE AS APPROVED BY HEAD OF EDUCATION

WORKPLACE LEVEL PROCEDURES(OR I MMEDI ATE SUPERVI SOR)

FORMAL DI SCI PLI NARYPROCEDURE (ABOVE WORKPLACE LEVEL)

DISCIPLIN

ARY

PRO

CED

URES

Managers (or immediatesuperiors) may only issue up to afi nal written warning – may notsuspend or dismiss

Formal disciplinary proceduresshould only deal with cases wherea termination could result

EXAMPLE OF NOTICE

[NAME OF EMPLOYEE]

[PERSONAL DETAI LS OF THE EMPLOYEE]

Title ____________________________________________

ALLEGED MI SCONDUCT : YOURSELF

I t has come to my attention that …. / / I am aware that on _____2002 you…

(describe nature of alleged misconduct)

I n order to discuss the matter, you are required to attend a meetingin room _______ / / my offi ce on ____________ at_______________. Please note that you have the right torepresentation by your trade union representative or a f ellowemployee.

Failure to attend the meeting could result in the matter having to bedetermined by a f ormal disciplinary enquiry.

_________________________SI GNATURE OF MANAGERDATE:

_________________________SI GNATURE OF EMPLOYEEDATE:

______________________SI GNATURE OF WI TNESS (I F APPLI CABLE)DATE:

SANCTIONSPROGRESSIVE

DISCIPLINEAPPROPRIATE SANCTIONS / CHOOSING THE APPROPRIATE

PROCEDURE 

THE SERIOUSNESS OF THE OFFENCE DETERMINES THE LEVEL OF ENTRY

  COUNSELLING 

  VERBAL WARNING 

WRITTEN WARNING 

FINAL WRITTEN WARNING  

  NO ACTION    

 

COUNSELLING SKILLS (GUIDELINES)

 Below please find a list that you consider necessary to have an effective counselling session.

        Counselling is one step up in formality from informal advice and correction        Counselling would normally take place in a semi-formal venue such as the

supervisors office        Counselling must be initiated by way of a written notification – there is no

prescribed form but the notification should set out the perceived area of poor performance.

        In counselling it may be that more than one person would be there on behalf of

the employer        The employee should be advised of his/her right to have his/her trade union

representative present 

        In the counselling session the employee should be told which standard he/she is

not attaining and/or which rule he/she is breaching        It should be pointed out to the employee in what respect he/she is failing to attain

the standard        The employee should be asked to identify obstacles as to why he/she cannot

attain the standard        A formal programme of training and counselling should be developed to assist the

employee        There may be one or a number of counselling sessions depending on the nature of

the offence        An employee should be warned that if at an appropriate stage there is no

improvement in performance it could lead to further steps        A record should be made and kept of the counselling session        The employee should be encouraged and motivated to attain the standard  

DISCIPLINARY CODE & PROCEDURE

1 An employee has been coming late for a couple of months. The last occasion occurred yesterday. You have not yet spoken to the

employee but now wish to manage the misconduct by using the Disciplinary Code and Procedures for Public Servants.

1.1 When do you anticipate holding the disciplinary meeting?

As soon as possible. 

1.2    Can you include all the previous occasions on which the employee came in late, not just yesterday’s incident?

  The CCMA and other institutions have often declined to take into account

misconduct which is raised too long after the event. There is also a principle that you cannot “store up” misconduct until you have a collection of offences which is serious enough to do something about. You must react to each and every instance where possible. 

1.3   When do you think you will be in a position to determine a sanction?

At the meeting or soon as possibIe. 

2.                  Can you counsel an employee without convening a disciplinary meeting?

No. In terms of PSCBC Resolution 2 of 1999 corrective counselling is a sanction. 

3.                  What forms would you use for the following?

3.1             A written warning.

Form A  3.2             A final written warning.  Form B

4.                  Where would the supervisor record a verbal warning?  The Act is not clear – presumably it could be recorded either in the supervisor’s l

diary or in some form in the employee’s personal file. 

5.                  If you have issued a written warning how long does it remain valid for?

Six months. 

6.                  What do you do if the employee refuses to sign a written warning or a final written warning that you wish to give her/him?

  In terms of item 5.4(b) of PSCBC Resolution 2 of 99 it states clearly that the

warning must then be handed over to the employee in the presence of another employee who signs in confirmation that the warning was conveyed to the employee. 

7.                  Is it correct that an employee may not appeal in the less formal disciplinary procedure? What procedure should be followed?

No – the employee may appeal to the supervisor / manager’s superior.

8. What kind of cases should be referred to the formal disciplinary process?

Cases of a serious nature.

9. Does the fact that you are in an informal procedure and not using witnesses mean that you do not really have to have any evidence before imposing a sanction?

This is not correct at all – any sanction that is imposed should still be based on factual evidence which is available even though it may not be presented at the meeting. Thus the cautionary rules against believing hearsay , rumour etc. still apply and the person administering the disciplinary procedure should be satisfied that if the matter ever came before an arbitration, the WCED would be able to support the conclusions he/she has come to.

10. Does the supervisor have authority to suspend an employee?

No. See the Disciplinary Code and Procedures for Public Servants.

CASE STUDY 1 Unauthorised absenteeism

Mr Nice Guy went of sick on 19 May 2002, although he produced a sick certificate for the period from 19 May 2002 until 21 May 2002 he only assumed duty on 27 May 2002. During his period of absence he never made any contact or informed his immediate supervisor of his intentions. As the Supervisor / Manager explain what procedure you will follow.

CASE STUDY 2 Alcohol abuse

On 07 May 2002 Mr Peterson, General Worker was found to be under the influence of alcohol. His supervisor, Mrs Delightfull said that on this particular day the officer was unsteady on his feet and could not perform his normal duties. He was also smelling like a shebeen. As the Supervisor explain what procedure you will follow.

CASE STUDY 3  Theft  

Mr Observer a Security Officer reported that on 10 May 2002 he found a box full of photo copying paper in the possession of Mr Thief. The items were concealed amongst other scrap paper. As the supervisor explain what procedure you will follow.

CASE STUDY 1       COVERED BY MEDICAL CERTIFICATE [19 – 21

MAY 2002] 

      ABSENT [19 – 26 MAY 2002] 

      PERIOD OF ABSENCE [8 DAYS]   PERIOD OF ABSENCE NOT COVERED BY MEDICAL

CERTIFICATE [5 DAYS]

      DETERMINE THE SERIOUSNESS?         PREVIOUS TRANSGRESSIONS  -         SIMILAR TRANSGRESSION – NEXT STEP -         OTHER – ACTIVATE NEW PROCEDURE

      PROCEDURE TO BE FOLLOWED

      MEETING

-         AUDI ALTERAM PARTEM -         RIGHT TO BE REPRESENTED -         DECISION G - On what

NG          Absent without permission and/or          Absent without reason          Not informing the office or institution 

Sanction if applicable Serious - 3 - refer or

FWW Serious - 13 - VERBAL to WW NO WORK NO PAY RIGHT TO APPEAL (PS) PERIOD

CASE STUDY 2 OBSERVATION MRS DELIGHTFULL ) OTHERS ) Statements

EVALUATION AND APPROPRIATE ACTION SEND HOME ISOLATION POSSIBILITY OF BLOOD TEST

(WITH CONSENT)

PROCEDURE NO MEETING REFER VERY SERIOUS TRANSGRESSION BE PREPARED TO TESTIFY IN A

HEARING

CASE STUDY 3 STATEMENTS OF WITNESSES

PROCEDURE NO MEETING REFER VERY SERIOUS TRANSGRESSION