The rights and duties of employers and employees
In any workplace, despite the number of employees, there are instances of employee misconduct. The responsibility of the employer is to deal with it consistently, fairly, and quickly. It is critical to workplace morale that misconduct is managed properly. If left unattended to, misconduct will quickly demoralise other employees.
Finding out exactly what happened is the first action a supervisor needs to take in response to employee misconduct. Sometimes, exactly what happened is hard to decide because other employees may be too afraid to speak about it. The supervisor must get all the facts. If a company dismiss an employee, it is extremely important to have all the facts and documentation to support the decision to dismiss. This means following the correct Disciplinary Procedure.
Experienced managers know that the large majority of employees perform their jobs well and with care. A lesser number of employees do not have this ambition or skill, but nevertheless perform at a minimally acceptable level. Finally, there are a few employees whose poor attitude and continuing misconduct clearly distinguish them from their fellow employees. These exceedingly hard-to-handle employees command a disproportionate amount of scarce management time.
The supervisor has the responsibility to work with these hard-to-handle employees to attempt to correct their performance. He may also have a primary responsibility for deciding the employment consequences if these employees do not improve as required.
One of the prime reasons that an employer takes disciplinary action against an employee, or that the employee takes action against the employer, is that one of the parties has infringed on the right of the other party. It is therefore very important to establish the Duties as well as the Obligations of both the employer and employee.
This relationship is regulated by a Contract of Employment.
Finding out exactly what happened is the first action a supervisor needs to take in response to employee misconduct. Sometimes, exactly what happened is hard to decide because other employees may be too afraid to speak about it. The supervisor must get all the facts. If a company dismiss an employee, it is extremely important to have all the facts and documentation to support the decision to dismiss. This means following the correct Disciplinary Procedure.
Experienced managers know that the large majority of employees perform their jobs well and with care. A lesser number of employees do not have this ambition or skill, but nevertheless perform at a minimally acceptable level. Finally, there are a few employees whose poor attitude and continuing misconduct clearly distinguish them from their fellow employees. These exceedingly hard-to-handle employees command a disproportionate amount of scarce management time.
The supervisor has the responsibility to work with these hard-to-handle employees to attempt to correct their performance. He may also have a primary responsibility for deciding the employment consequences if these employees do not improve as required.
One of the prime reasons that an employer takes disciplinary action against an employee, or that the employee takes action against the employer, is that one of the parties has infringed on the right of the other party. It is therefore very important to establish the Duties as well as the Obligations of both the employer and employee.
This relationship is regulated by a Contract of Employment.
1.1 Rights of the employee and employer
Both the employer and the employee have certain rights in their working relationship. Some of these rights are stipulated in the contract of employments, or may be contained in various pieces of legislation.
The rights of both parties can be illustrated as in Figure 1.1:
Both the employer and the employee have certain rights in their working relationship. Some of these rights are stipulated in the contract of employments, or may be contained in various pieces of legislation.
The rights of both parties can be illustrated as in Figure 1.1:
Figure 1.1 The origins of employee and employer rights (SA Labour LAW)
1.2 Duties and Obligations of the parties
Both the employer and the employee have certain legal duties and obligations. The duties of both are defined in the figure below:
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.
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.
Both the employer and the employee have certain legal duties and obligations. The duties of both are defined in the figure below:
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.
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.
1.3 The Purpose of the Disciplinary Code and Procedure
The purpose of a disciplinary code and procedure is to regulate standards of conduct and incapacity of employees within a company. The aim of the discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace. This also creates certainty and consistency in the application of discipline.
In prescribing its policy a company should undertake to maintain disciplinary and appeal procedures which are fair, just and equitable for all its employees, irrespective of race, creed, sex, and religion or job category.
The main purpose of the disciplinary procedure is to provide guidelines in correcting unacceptable behaviour or unsatisfactory performance by any employee. At all times the Code of Good Practice as contained in Schedule 8 of the Labour Relations Act, 1995 should be used as a primary guideline.
A disciplinary code simply specifies which forms of employee behaviour are regarded as misconduct by the employee. It also indicates the type of disciplinary actions the employer can apply if an employee breaches the code.
It is the company’s responsibility to establish a set of rules which are known and understood by employees. When drafting effective rules, management should consider the following:
· Written rules must be carried out as detailed.
· Rules must meet specific company requirements.
· The set of rules should not be too extensive.
· Rules should not be adopted mechanically. The company must consider which rules would apply specifically to its circumstances.
1.4 Supervisors and the need to discipline
Employees falling under the supervisor’s authority need to understand:
o Misconduct.
1.5 Counselling versus disciplinary action
There is a difference between disciplinary action and counselling.
Corrective counselling will be appropriate where the employee is not performing to a standard or is not aware of the 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 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 she/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.
The purpose of a disciplinary code and procedure is to regulate standards of conduct and incapacity of employees within a company. The aim of the discipline is to correct unacceptable behaviour and adopt a progressive approach in the workplace. This also creates certainty and consistency in the application of discipline.
In prescribing its policy a company should undertake to maintain disciplinary and appeal procedures which are fair, just and equitable for all its employees, irrespective of race, creed, sex, and religion or job category.
The main purpose of the disciplinary procedure is to provide guidelines in correcting unacceptable behaviour or unsatisfactory performance by any employee. At all times the Code of Good Practice as contained in Schedule 8 of the Labour Relations Act, 1995 should be used as a primary guideline.
A disciplinary code simply specifies which forms of employee behaviour are regarded as misconduct by the employee. It also indicates the type of disciplinary actions the employer can apply if an employee breaches the code.
It is the company’s responsibility to establish a set of rules which are known and understood by employees. When drafting effective rules, management should consider the following:
· Written rules must be carried out as detailed.
· Rules must meet specific company requirements.
· The set of rules should not be too extensive.
· Rules should not be adopted mechanically. The company must consider which rules would apply specifically to its circumstances.
1.4 Supervisors and the need to discipline
Employees falling under the supervisor’s authority need to understand:
- What is to be done?
- Where it is to be done.
- When it is to be done.
- By whom it is to be done.
- How it is to be done.
- The standards and behaviour expected of them.
- What the consequences will be if they do not carry out an instruction or break a rule.
- When a clear breach of an employee’s contractual obligations occurs, such as:
o Misconduct.
1.5 Counselling versus disciplinary action
There is a difference between disciplinary action and counselling.
Corrective counselling will be appropriate where the employee is not performing to a standard or is not aware of the 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 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 she/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.
1.6.3 Company Policies, Procedures and Regulations.
This is a set of rules which apply to your own Company only, and may not conflict with the conditions of any Statute unless the Company rule is more favourable to the employee than the corresponding condition in the Statute. For example, the BCEA stipulates a minimum of 15 days paid leave per annum. The Company can give 20 days per annum if they wish, but they may not give only 10 days.
1.6.4 Basic Obligations
The employment relationship, particularly when it is governed by a sophisticated collective agreement, can be very complex, but at its root are some simple principles. These principles continue to apply in the collective bargaining setting, unless they are expressly changed by the employer and its trade union. An employer agrees to employ the employee for a particular job and to pay the employee a stipulated rate. By accepting employment, the employee agrees to attend at work regularly and to perform the work with reasonable competence. The employee also implicitly agrees to perform work honestly and faithfully and to accept the lawful directions of the employer.
1.6.5 The Importance of Due Process
In a discipline case, the employer has the onus of proof. This means that the employer has the legal burden of proving both that the discipline was warranted and that the magnitude of discipline was reasonable in the circumstances. If the arbitrator finds that discipline was not warranted, the discipline will be revoked. If the arbitrator considers that discipline is appropriate, but disapproves of the severity of discipline that was issued, the arbitrator can substitute a different measure of discipline. This kind of inquiry addresses the merits of the case. An arbitrator may also be asked to inquire into the process followed by the employer in reaching its decision to discipline. The focus in discipline cases was once almost exclusively on the alleged offence; that was the merits of the case. Needless to say, this remains very important, but the question of fairness in the investigation process has taken on a life of its own as a major issue in labour arbitration proceedings.
The following questions are often asked at arbitration proceedings:
· Was the employer thorough in its investigation?
· Were the employer representatives biased against the employee from the outset?
· Did the employer provide proper notice of and allow the employee to have a Union Representative at the disciplinary meeting?
· Did the investigation allow the employee to provide full answer to the allegation?
· Did the employer overlook or withhold evidence during the investigation?
1.7 What Can Reasonably be Expected From Employees?
The following guidelines will help define the boundaries of reasonable performance and conduct that you, as supervisors and managers, can expect from employees.
1. Honesty and Integrity
Employees have an obligation to represent the company in a responsible manner. You can expect employees to conduct themselves with honesty and integrity. This includes, for example:
· not removing or using private documents where it is reasonable to assume the documents are confidential;
· safeguarding, and not stealing property of the organisation and co-workers.
· having scrupulous regard for the confidentiality of employee, and organisational information;
· respecting the privacy of other staff (e.g. avoiding listening in to telephone or their conversations); and,
· using company property or equipment appropriately (i.e. internet, telephone, fax, printers).
2. Performance
· When performing their job, employees must meet a reasonable and acceptable standard. This includes the following:
o being reasonably careful, and not careless, in the performance of work;
o being reasonably efficient in their work; properly carrying out their job duties;
o carrying out the lawful directions or instructions of their supervisor in a cooperative manner;
o working co-operatively with co-workers; and,
o accepting their supervisors’ coaching and feedback to improve performance.
Employees are expected to make every effort to attend work capable of safely performing their duties (For example: being sober and physically and mentally able). If they cannot, employees are expected to ask for assistance or accommodation.
Employees must treat their co-workers, supervisors, staff they supervise, and colleagues in a respectful manner. Bullying, intimidation, sexually harassing or other similar behaviour is unacceptable.
3. Attendance
Employees are expected to organize their personal affairs so that they can attend work on a regular basis. In order to assist employees with this, there are provisions within the Collective Agreements or employment contracts. These may include paid or unpaid leaves, flexibility in scheduling, and other time off provisions as operations allow.
Where an employee may not be attending work regularly, you as the supervisor or manager have a responsibility to meet with the employee to determine what, if anything, the company can reasonably do to assist them in their efforts to come to work.
Employees must provide a reasonable or justifiable explanation for their Absence. Concerns for privacy may allow an employee to refuse the details of an illness, but when an employee is unexpectedly away from work for justifiable reasons, they must notify you about the absence, its expected duration, and the general reasons for the absence.
When an employee intends to leave work early, even for justifiable cause, they must notify you, except in rare circumstances where this would not be reasonable.
4. Off-Duty Conduct
You can expect that employees will conduct themselves away from their jobs in such a way as to not seriously prejudice the company’s interests or reputation.
5. Dealing with problems or issues
If an employee has a complaint or issue with their work conditions, co-workers or their duties, they are expected to use proper procedures (e.g. notifying their supervisor, union steward, human resources consultants) to remedy a situation.
Ultimately if an employee’s continued employment presents a serious risk to the company property or to the well-being of co-workers, or where their behaviour persists over such a period of time so as to confirm conclusively their unwillingness to cooperate or to follow the reasonable and lawful directions of their supervisor, the employee may be discharged for cause.
Areas of Exposure for Employers
The manner in which workplace investigations are handled can have a tremendous impact on the employer’s exposure to and ability to defend against a lawsuit. The following materials provide a road map for conducting investigations in the workplace with the goal of limiting an organisation’s potential liability.
This is a set of rules which apply to your own Company only, and may not conflict with the conditions of any Statute unless the Company rule is more favourable to the employee than the corresponding condition in the Statute. For example, the BCEA stipulates a minimum of 15 days paid leave per annum. The Company can give 20 days per annum if they wish, but they may not give only 10 days.
1.6.4 Basic Obligations
The employment relationship, particularly when it is governed by a sophisticated collective agreement, can be very complex, but at its root are some simple principles. These principles continue to apply in the collective bargaining setting, unless they are expressly changed by the employer and its trade union. An employer agrees to employ the employee for a particular job and to pay the employee a stipulated rate. By accepting employment, the employee agrees to attend at work regularly and to perform the work with reasonable competence. The employee also implicitly agrees to perform work honestly and faithfully and to accept the lawful directions of the employer.
1.6.5 The Importance of Due Process
In a discipline case, the employer has the onus of proof. This means that the employer has the legal burden of proving both that the discipline was warranted and that the magnitude of discipline was reasonable in the circumstances. If the arbitrator finds that discipline was not warranted, the discipline will be revoked. If the arbitrator considers that discipline is appropriate, but disapproves of the severity of discipline that was issued, the arbitrator can substitute a different measure of discipline. This kind of inquiry addresses the merits of the case. An arbitrator may also be asked to inquire into the process followed by the employer in reaching its decision to discipline. The focus in discipline cases was once almost exclusively on the alleged offence; that was the merits of the case. Needless to say, this remains very important, but the question of fairness in the investigation process has taken on a life of its own as a major issue in labour arbitration proceedings.
The following questions are often asked at arbitration proceedings:
· Was the employer thorough in its investigation?
· Were the employer representatives biased against the employee from the outset?
· Did the employer provide proper notice of and allow the employee to have a Union Representative at the disciplinary meeting?
· Did the investigation allow the employee to provide full answer to the allegation?
· Did the employer overlook or withhold evidence during the investigation?
1.7 What Can Reasonably be Expected From Employees?
The following guidelines will help define the boundaries of reasonable performance and conduct that you, as supervisors and managers, can expect from employees.
1. Honesty and Integrity
Employees have an obligation to represent the company in a responsible manner. You can expect employees to conduct themselves with honesty and integrity. This includes, for example:
· not removing or using private documents where it is reasonable to assume the documents are confidential;
· safeguarding, and not stealing property of the organisation and co-workers.
· having scrupulous regard for the confidentiality of employee, and organisational information;
· respecting the privacy of other staff (e.g. avoiding listening in to telephone or their conversations); and,
· using company property or equipment appropriately (i.e. internet, telephone, fax, printers).
2. Performance
· When performing their job, employees must meet a reasonable and acceptable standard. This includes the following:
o being reasonably careful, and not careless, in the performance of work;
o being reasonably efficient in their work; properly carrying out their job duties;
o carrying out the lawful directions or instructions of their supervisor in a cooperative manner;
o working co-operatively with co-workers; and,
o accepting their supervisors’ coaching and feedback to improve performance.
Employees are expected to make every effort to attend work capable of safely performing their duties (For example: being sober and physically and mentally able). If they cannot, employees are expected to ask for assistance or accommodation.
Employees must treat their co-workers, supervisors, staff they supervise, and colleagues in a respectful manner. Bullying, intimidation, sexually harassing or other similar behaviour is unacceptable.
3. Attendance
Employees are expected to organize their personal affairs so that they can attend work on a regular basis. In order to assist employees with this, there are provisions within the Collective Agreements or employment contracts. These may include paid or unpaid leaves, flexibility in scheduling, and other time off provisions as operations allow.
Where an employee may not be attending work regularly, you as the supervisor or manager have a responsibility to meet with the employee to determine what, if anything, the company can reasonably do to assist them in their efforts to come to work.
Employees must provide a reasonable or justifiable explanation for their Absence. Concerns for privacy may allow an employee to refuse the details of an illness, but when an employee is unexpectedly away from work for justifiable reasons, they must notify you about the absence, its expected duration, and the general reasons for the absence.
When an employee intends to leave work early, even for justifiable cause, they must notify you, except in rare circumstances where this would not be reasonable.
4. Off-Duty Conduct
You can expect that employees will conduct themselves away from their jobs in such a way as to not seriously prejudice the company’s interests or reputation.
5. Dealing with problems or issues
If an employee has a complaint or issue with their work conditions, co-workers or their duties, they are expected to use proper procedures (e.g. notifying their supervisor, union steward, human resources consultants) to remedy a situation.
Ultimately if an employee’s continued employment presents a serious risk to the company property or to the well-being of co-workers, or where their behaviour persists over such a period of time so as to confirm conclusively their unwillingness to cooperate or to follow the reasonable and lawful directions of their supervisor, the employee may be discharged for cause.
Areas of Exposure for Employers
- Recruiting and hiring employees.
- Employee evaluations.
- Discipline and corrective action.
- Terminating employees.
- Employee and applicant testing (medical, drug & alcohol, personality, aptitude, etc.)
- Workplace harassment by other employees or managers (sex, race, colour, religion, national origin, age, disability, retaliation, etc.)
- Workplace discrimination (sex, race, colour, religion, national origin, age, disability, retaliation, etc.)
- Incorrect handling of disciplinary action, such as:
- No investigation before meeting
- No written warning of meeting
- No representative
- No sight of evidence
- Decision made before heard case
- No investigation before appeal
- No representative in appeal
- Appeal decision made before consideration
The manner in which workplace investigations are handled can have a tremendous impact on the employer’s exposure to and ability to defend against a lawsuit. The following materials provide a road map for conducting investigations in the workplace with the goal of limiting an organisation’s potential liability.