Disciplinary Proceedings under the Labour (National Employment Code of Conduct) Regulations of 2006: Procedural and Substantive Fairness

    The National Employment Code of Conduct (hereinafter called the code) was enacted in terms of section 101 (9) of the Labour Act. An employer who does not have in place a registered code of conduct is obliged to adhere to the provisions of the Code whenever an employee is arraigned before its disciplinary authority on allegations of serious misconduct. One of the objectives of the Code, which is the subject matter of this article, is to provide guidelines on procedural and substantive fairness and justice in handling disciplinary matters at work place. The Code specifies acts that amount to misconduct and goes further to prescribe the procedure to be followed should the employer decide to institute disciplinary proceedings against an employee. What follows hereunder is a brief analysis of the steps an employer is obliged to take in order to stand the test of substantive and procedural fairness in disciplinary proceedings against its employees.

    Substantive unfairness arises when an employer commences disciplinary proceedings against an employee on allegations of conduct not defined as constituting misconduct by the Code. If the conduct complained of does not suffice as an act of misconduct in terms of section 4 of the code, the employer has no basis to charge the employee. Consequently, it cannot validly charge the employee and if it does, whatever decision it arrives at can be successfully challenged on account of it being substantively unfair.

    On the other hand, procedural unfairness arises when an employer who has properly charged an employee fails to conduct the disciplinary proceedings in a manner outlined in section 6 of the Code. That the employer has a basis to charge the employer does not mean that it is entitled to summarily conduct the disciplinary proceedings in defiance of the procedure prescribed in section 6 of the Code. If the employer does this, its finding can also be successfully challenged on account of it being procedurally unfair. Although mention may be made in passing, it is not the purpose of this article to detail the legal remedies available to victims of the employer’s illegal conduct in both the aforesaid instances.

    Before charging an employee with an act of misconduct, it is incumbent upon the employer to carefully investigate the allegation giving rise to the charge against the employee. In the event that the employer finds that the allegation is grounded on solid facts, the next step is for the employer to decide on the offence with which to charge the employee. The offence has to be found within the ambit of Section 4 of the Code. Any attempt to charge an employee outside the provisions of section 4 would, as hinted above, amount to substantive unfairness. In that case, an employee can appeal the decision in terms of section 8 of the Code.