Make sure there has been misconduct

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Tony Healy

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 process.

One will never know for sure whether a disciplinary process is 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.

Let’s say that employees A, B and C witness an assault.

They may well confirm to management that they were witnesses to the assault, but they refuse to testify in a subsequent disciplinary hearing.

Unless the perpetrator of the assault admits guilt, or there are other eyewitnesses willing to testify in the disciplinary hearing, the employer cannot initiate a disciplinary case because there are no witnesses to prove the assault (that is to say, the blameworthy act).

The proving of blameworthiness flows from either company rules or acts and omissions that are generally accepted as always being of a blameworthy nature (for instance, assault and theft).

However, proof of knowledge of a company rule is frequently a crucial aspect of a disciplinary case.

Often the alleged offender denies knowledge of the rule he or she is being accused of having breached.

It’s 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 or regulation in respect of which there is no proof that the employee had knowledge thereof.

Blameworthiness itself arises from either negligence or intent.

Intentional negligence is a contradiction in terms; one cannot be intentionally negligent.

Negligence as an act of alleged misconduct amounts to the employer accusing the employee of performing or acting in a manner short of how the employer could have reasonably expected the employee to perform/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 or omission and the blameworthiness, on the balance of probabilities, before launching into a disciplinary process, failing which, the disciplinary hearing will ordinarily flounder.

l To register for a 2012 Labour Law Conference on July 24, addressing the new labour law amendments, the new Commission for Conciliation, Mediation and Arbitration misconduct arbitration guidelines, and the latest landmark labour cases, call 011 476 1620 or e-mail admin@tonyhealy.co.za