Handling employee disciplinary cases

In last week's  article titled "How to handle Employee Grievances"  by the same author it was pointed out that in some cases it so happens that issues and complaints arise even I organizations with strong management and competent workforce. Some of the issues which can arise at a workplace besides grievances by employees are worker disciplinary related issues. In this article the author is going to explain how an employee disciplinary action should be handles.

The word discipline as defined by the Wikipedia means a "systematic instruction intended to train a person, sometimes literally called a disciple, in a craft, trade or other activity, or to follow a particular code of conduct or order" The above definition sounds the same with the assertions of the Zimbabwe Statutory Instrument 15 of 2006 Section 7(1) which says "In general, disciplinary action should, in the first instance, be educational and then corrective". The government of Canada in its online article titled "Guidelines for Discipline" 2005, echoes the same words when it says "The nature of discipline is to be corrective, rather than punitive, and its purpose is to motivate employees to accept those rules and standards of conduct that are desirable or necessary to achieve the organization's goals and objectives"

There are two types of discipline which an employee can be subjected to. The first is a performance-based discipline and then the behavior based discipline. If the employee is to be disciplined for performance-based issues then the unsatisfactory work must be clearly be explained including issue to do with unachieved set targets and goals. If the employee is to disciplined for behavior-based issues then the actual rule broken must be explained in the charge letter citing the exact section of the code of conduct being used in support of the allegation.

The company's code of conduct is the document used in coming with a charge against an employee. As pointed out in the article "How to Handle Employee Grievances", the Code of Conduct used to charge an employee must be a registered one with the Ministry of Labour in terms of the Labour Act section 101.If the company falls within the industry of a registered National Employment Council then the Code of that NEC supersedes that of your company. If a company or organization does not have a code of conduct and where that particular company does not fall under any registered National Employment Council it is bound to use the Zimbabwe Statutory Instrument 15 of 2006 as its code of conduct.

Whenever an employee is suspected to have violated the Code of Conduct he/she is given a charge letter explaining details of the alleged violations. Depending on the gravity of the offence the employee may be suspended pending further investigations. However, it is noted that some employers abuse the issue of suspensions, sometimes suspending employees over petty and trivial cases, with some employees being suspended for stealing empty computer cardboard boxes.

After an employee has been given his/her charge letter he is given a chance to respond to the charge. Employees must be reminded that it is your right not to be rushed to respond to the charge. Sometimes workers are used to hear the following words from their bosses whenever the initial statement is required from them; "I need your response now." That is unfair. Usually the Code of Conduct of your company explains the time frame which you are required to surrender your response to the charge. The time frame ranges from 24 hours to 3 days. According to the Harvard College's online article titled "Responding to an Allegation Made Against You" the initial statement is among the most important documents by the employer in a disciplinary case. It is recommended that the initial statement be written by you rather than by your Trade Union, legal representative, family members or friends although you can share with them your draft in order to get advice on your writing style and clarity among other issues. You must get advice from people who are friendly to you.

The initial statement should tell clearly the full story of the event, describe the event in full and then finally the statement must give your reflections on the event. It is advisable that you attach to your statement a descriptive list of all sources of information in support of your statement.

After your initial statement, the employer is then supposed to advise you, on time, the date of your disciplinary hearing. You must know what your company code says on the reasonable notice time frame. If you are given a short notice then you can raise that issue in the hearing or raise that issue to the next appeal authority. However, it is advisable that you attend your disciplinary hearing.

During the disciplinary hearing avoid doing the following; don't be hostile but remain calm, don't remain silent when you are expected to talk, avoid crying during the session but if you feel like crying ask for a temporary adjournment of the proceedings so that you can regain your composure in a secret place, and avoid intimidating the disciplinary panel. The disciplinary proceeding may raise your emotions high but learn to control them throughout the session. Your personal representative must be able to assist you through this trying time.

The employer is expected to observe what are called principles of natural justice before, during and after the disciplinary hearing. The National University of Ireland in its online document titled "Guidance Note on the Principles of Natural Justice" (2004) defines the principle of natural justice as meaning  that "the employer/management must apply fair procedures and act reasonably at all times." The principle requires that an employee; be allowed to give his/her own side of the story, have a right to be represented during the hearing, give an employee sufficient time to prepare for the hearing, allow the employee to view every document which will be used against him/her during the hearing and to allow an employee to call any witness who will witness on behalf of him/her.

After the disciplinary hearing the employee must be notified of the determination of the hearing. It is up to the employee to accept the outcome of the hearing or to appeal against the decisions of the hearing committee to the appeals authority. The S.I 15 of 2006 advises that there must not be more than two (2) internal appeals levels within the same organization. After you have exhausted all internal levels of appeals but you still feel not satisfied, you can then approach the Ministry of Labour or the responsible National Employment Council for Conciliations and Arbitration.

The author wishes to advise employees to abide by the rules of their jobs. The author advises employees to study their company's Code of Conduct as if they are studying their Bibles so as to avoid behaviors which may find them facing stressful and traumatic disciplinary proceedings. The author's next article will be focusing on conciliation and Arbitration.

Etiwel Mutero holds a B.Sc. Honours Degree in Records and Archives Management. You can contact him on his mobile phone +263773614293 or email etiwelm02@gmail.com or connect with him on www.facebook.com/emutero