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There are varying degrees of issues you may face in the workplace that could lead to a difficult work environment, from incapacity to negligence and misconduct. This article will help you understand the differences between these infringements and how to approach disciplinary matters with our assistance.
Incapacity is the inherent inability of an employee to perform his / her work to the employer’s established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. It is important to note that your employer can under no circumstances dismiss you whilst dealing with incapacity, without following the correct procedure. Dismissal must be both substantively and procedurally fair.
These steps should be followed:
A person’s conduct is negligent if:
It is obvious from the above, there is sometimes an overlap between poor work performance and negligence. Negligence can be treated either as incapacity or as misconduct, depending on the circumstances.
Misconduct may differ from company to company and there is no complete list of the types of misconduct an employee can commit. Specific forms of misconduct would thus be dependent on the type of industry your company is operating in, the culture and specific workplace rules and regulations.
Typical examples of misconduct are theft, fraud, assault, wilful damage to company property, intimidation, insubordination, unauthorised absenteeism, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or narcotic substance, arriving at work with the smell of alcohol on the breath, wilful poor work performance and sexual or racial harassment, to name but a few.
Dishonesty in the workplace can take many different forms including:
Consistently arriving late for work could be seen as gross misconduct by your employer and lead to a dismissal. Avoiding such circumstances can be made easier with professional help and guidance. See what steps you can take to maintain a healthy relationship with your employer and take the correct approach to ensure your employment contract is not breached.
Both the principles of sound management and the Labour Relations Act 66 of 1995 require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders.
In other words, every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing.
Within a reasonable period after the disciplinary hearing, you should be furnished with a Notice of Outcome setting out the finding on each charge and the sanction.
To initiate an appeal, you should file a Request for an Appeal.
After receiving a Request for Appeal, your employer will convene an appeal hearing, which will be conducted by a new presiding officer. All evidence and legal argument submitted at the disciplinary hearing will need to be submitted once again. Based on the appeal hearing, the presiding officer will decide the matter.
Should you not be satisfied with the outcome of the disciplinary hearing, you will need to submit this matter to the CCMA or appropriate Bargaining Council. You should contact a labour expert or the CCMA immediately as there are time frames that need to be adhered to.
Where there is misconduct, a rule, norm, policy or practice needs to be in place, which an employee can break either by way of omission or commission. A Code would provide a framework, setting out how employees are to conduct themselves and behave at work. In this way, employees have certainty regarding the consequences of any unacceptable behaviour in the workplace and cannot plead ignorance to what constitutes misconduct.
It is important to remember that you have the right to be treated fairly, no matter what situation you find yourself in. Our Legal Advisors are here to assist you and ensure your rights as an employee are upheld
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