DEPARTMENTAL PURPOSE OBJECTIVES Ø Ø Decentralise the

DEPARTMENTAL PURPOSE & OBJECTIVES Ø Ø Decentralise the function to institution level as per relevant legislation (PSCBC Resolution 2/99) Adequately equip managers with knowledge of relevant legislation and terminology

Ø Ø Ø Equip managers with skills & knowledge to deal with discipline at workplace effectively Distinguish between different roleplayers and functions Practical exposure relating to discipline at the workplace

TERMINOLOGY Law of natural Justice • These are rules of procedure and evidence that dictates fairness in a disciplinary process. 2. Audi Alteram Partem This means to hear the other side. Both sides must be heard, but they must both be heard equally and fairly. 3. Evidence is the information or facts on which a decision can be made. Such information is entered into evidence to prove or substantiate the existence of facts that would prove or disapprove an allegation or claim. 1. • 4.

Witness A witness is any person that can provide verbal information on the fact in question. 5. Documentary Evidence 6. A document is any book, map, plan, drawing, photograph letter or piece of paper that can provide information on a fact in question. 6. Prima Facie Evidence This means at first instance, or at first glance. This evidence can be regarded as almost conclusive, unless the other party can provide a satisfactory answer to the fact being stated 7. Hearsay Evidence that is given by a person who did not experience the event or fact in question. It is evidence of which the value depends on the credibility of another person. 4. • 7. 8.

Finding The decision that is taken on whether or not an allegation is true. The finding for the purpose of discipline, can only be guilty or not guilty. 9. Burden of Proof 10. The person that makes the allegation must prove his allegation. This means that the accuser must provide evidence of his allegation. He therefore carries the burden of proof 10. Balance of Probabilities 11. This is the amount of proof that must be provided for the accuser to satisfy his burden of proof. This means that the presiding officer must rule in favour of the most probable version presented to him. The balance of probabilities is 51%. Where it can not be determined which version is more probable (in other words the case is 50/50), it must be ruled that the accusing party has not satisfied their burden of proof. 8. •

Sanction • The sanction is the “sentence” that a person is to receive, once they have been found guilty. This could be either corrective, punitive or both. 12. Corrective Sanctions 13. This is something that essentially adds to the person such as a warning or counselling. It is intended to correct his behaviour by assisting him to do so. 13. Punitive Sanction 14. This is something that takes away from the person such as suspension, a fine or dismissal. It is intended to punish rather than correct. 14. Meeting 15. This is the least formal of the two. The rules of evidence may be applied if the situation is called for. The sanction that can be given is usually corrective in nature. 11.

Hearing A hearing is a formal process, where the rules of procedure and evidence are usually strictly applied. The sanction of a hearing will usually be punitive. 16. Appeal An appeal, a process by which a person applies to a higher authority than the one who gave the sanction. In such an application, the person will usually ask for the finding and sanction to be set aside or reduced. Point in Limini • Is an material issue of Fact or Law which must be determined before the continuation of the proceedings. 15. •

EXERCISE 3 n n A. DEFINE IN YOUR OWN WORDS THE PURPOSE OF DISCIPLINE. B. WHAT ARE THE PRINCIPLES OF HAVING A DISCIPLINARY CODE AND PROCEDURE?

THE PURPOSE OF DISCIPLINE The purpose of discipline: it is essentially: § § to support constructive labour relations in the public service; to promote mutual respect between employees and employer; to ensure that managers and employees share a common understanding of misconduct and discipline; to promote acceptable conduct;

§ to provide employees and the employer with a quick § and easy reference for the application of discipline; § to prevent arbitrary or discriminatory actions by managers toward employees.

ROLEPLAYERS & FUNCTIONS : WCED [DIRECTORATE : LABOUR RELATIONS] v SERIOUS DISCIPLINARY TRANSGRESSIONS/MISCONDUCT Ø [PSCBC RESOLUTION 2/99] Ø DISCIPLINARY HEARING Ø Ø APPEALS Ø Ø INITIATOR [EMPLOYER REPRESENTATIVE Ø PRESIDING OFFICER Ø INVESTIGATION WHERE RELEVANT CHIEF DIRECTOR : HUMAN RESOURCE MANAGEMENT DISPUTES Ø PS – GPSSBC

MANAGER / SUPERVISOR Ø LEGISLATION PSCBC RESOLUTION 2 OF 1999 Ø FUNCTIONS q ACCOUNTABILITY q MANAGE DISCIPLINE AT WORKPLACE q ENSURE THAT CORRECT PROCEDURES ARE FOLLOWED ACCORDING TO RELEVANT LEGISLATION AND/OR COLLECTIVE AGREEMENTS q DISTINGUISH BETWEEN THE DIFFERENT FUNCTIONS OF ROLEPLAYERS

TRADE UNIONS Ø FUNCTIONS REPRESENTATION OF MEMBERS - ELECTED SHOPSTEWARDS TO REPRESENT WORKERS IN THE WORKPLACE IN RESPECT OF INDIVIDUAL DISCIPLINARY PROCEDURES (COLLECTIVE AGREEMENTS) q OBSERVERS q ADVISORS

Ø § § § Public Service Unions PSA DENOSA NEHAWU PAWUSA NUPSAW IN ADDITION TO THE ABOVE, THE EMPLOYEE MAY BE REPRESENTED BY A FELLOW EMPLOYEE OR A REPRESENTATIVE AS STIPULATED.

THE ACCUSED RIGHTS: 1. TO BE REPRESENTED AT THE MEETING; 2. AUDI ALTERAM PARTEM RULE; 3. FAIR PROCEDURE.

SANCTIONS PROGRESSIVE DISCIPLINE APPROPRIATE SANCTIONS / CHOOSING THE APPROPRIATE PROCEDURE THE SERIOUSNESS OF THE OFFENCE DETERMINES THE LEVEL OF ENTRY Ø Ø Ø COUNSELLING VERBAL WARNING WRITTEN WARNING Ø Ø FINAL WRITTEN WARNING NO ACTION

COUNSELLING SKILLS (GUIDELINES) Below please find a list that you consider necessary to have an effective counselling session. q Counselling is one step up in formality from informal advice and correction q Counselling would normally take place in a semi-formal venue such as the supervisors office q Counselling must be initiated by way of a written notification – there is no prescribed form but the notification should set out the perceived area of poor performance. q In counselling it may be that more than one person would be there on behalf of the employer q The employee should be advised of his/her right to have his/her trade union representative present

q In the counselling session the employee should be told which standard he/she is not attaining and/or which rule he/she is breaching q It should be pointed out to the employee in what respect he/she is failing to attain the standard q The employee should be asked to identify obstacles as to why he/she cannot attain the standard q A formal programme of training and counselling should be developed to assist the employee q There may be one or a number of counselling sessions depending on the nature of the offence q An employee should be warned that if at an appropriate stage there is no improvement in performance it could lead to further steps q A record should be made and kept of the counselling session q The employee should be encouraged and motivated to attain the standard

DISCIPLINARY CODE & PROCEDURE

n 1 An employee has been coming late for a couple of months. The last occasion occurred yesterday. You have not yet spoken to the employee but now wish to manage the misconduct by using the Disciplinary Code and Procedures for Public Servants. n 1. 1 When do you anticipate holding the disciplinary meeting? n As soon as possible. n 1. 2 Can you include all the previous occasions on which the employee came in late, not just yesterday’s incident? n The CCMA and other institutions have often declined to take into account misconduct which is raised too long after the event. There is also a principle that you cannot “store up” misconduct until you have a collection of offences which is serious enough to do something about. You must react to each and every instance where possible. n 1. 3 When do you think you will be in a position to determine a sanction? n At the meeting or soon as possib. Ie.

n 2. Can you counsel an employee without convening a disciplinary meeting? n No. In terms of PSCBC Resolution 2 of 1999 corrective counselling is a sanction. n 3. What forms would you use for the following? n 3. 1 A written warning. n Form A n 3. 2 A final written warning. n Form B n 4. Where would the supervisor record a verbal warning? n The Act is not clear – presumably it could be recorded either in the supervisor’s l diary or in some form in the employee’s personal file.

n 5. If you have issued a written warning how long does it remain valid for? n Six months. § 6. What do you do if the employee refuses to sign a written warning or a final written warning that you wish to give her/him? n In terms of item 5. 4(b) of PSCBC Resolution 2 of 99 it states clearly that the warning must then be handed over to the employee in the presence of another employee who signs in confirmation that the warning was conveyed to the employee. n 7. Is it correct that an employee may not appeal in the less formal disciplinary procedure? What procedure should be followed? n No – the employee may appeal to the supervisor / manager’s superior.

n 8. What kind of cases should be referred to the formal disciplinary process? n Cases of a serious nature. n 9. Does the fact that you are in an informal procedure and not using witnesses mean that you do not really have to have any evidence before imposing a sanction? n This is not correct at all – any sanction that is imposed should still be based on factual evidence which is available even though it may not be presented at the meeting. Thus the cautionary rules against believing hearsay , rumour etc. still apply and the person administering the disciplinary procedure should be satisfied that if the matter ever came before an arbitration, the WCED would be able to support the conclusions he/she has come to.

n 10. Does the supervisor have authority to suspend an employee? n No. See the Disciplinary Code and Procedures for Public Servants.

CASE STUDY 1 n Unauthorised absenteeism n Mr Nice Guy went of sick on 19 May 2002, although he produced a sick certificate for the period from 19 May 2002 until 21 May 2002 he only assumed duty on 27 May 2002. During his period of absence he never made any contact or informed his immediate supervisor of his intentions. As the Supervisor / Manager explain what procedure you will follow.

CASE STUDY 2 n Alcohol abuse n On 07 May 2002 Mr Peterson, General Worker was found to be under the influence of alcohol. His supervisor, Mrs Delightfull said that on this particular day the officer was unsteady on his feet and could not perform his normal duties. He was also smelling like a shebeen. As the Supervisor explain what procedure you will follow.

CASE STUDY 3 n Theft n Mr Observer a Security Officer reported that on 10 May 2002 he found a box full of photo copying paper in the possession of Mr Thief. The items were concealed amongst other scrap paper. As the supervisor explain what procedure you will follow.

CASE STUDY 1 n Ø COVERED BY MEDICAL CERTIFICATE [19 – 21 MAY 2002] n Ø ABSENT [19 – 26 MAY 2002] n Ø PERIOD OF ABSENCE [8 DAYS] PERIOD OF ABSENCE NOT COVERED BY MEDICAL CERTIFICATE [5 DAYS] n n n n Ø DETERMINE THE SERIOUSNESS? Ø PREVIOUS TRANSGRESSIONS - SIMILAR TRANSGRESSION – NEXT STEP - OTHER – ACTIVATE NEW PROCEDURE

n Ø PROCEDURE TO BE FOLLOWED n Ø MEETING n - AUDI ALTERAM PARTEM - RIGHT TO BE REPRESENTED - DECISION G On what n n n NG Absent without permission and/or Absent without reason Not informing the office or institution

Ø q q Ø Ø Ø Sanction if applicable Serious 3 - refer or FWW Serious - 13 - VERBAL to WW NO WORK NO PAY RIGHT TO APPEAL (PS) PERIOD

CASE STUDY 2 v Ø Ø Ø OBSERVATION MRS DELIGHTFULL OTHERS ) ) Statements EVALUATION AND APPROPRIATE ACTION SEND HOME ISOLATION POSSIBILITY OF BLOOD TEST (WITH CONSENT)

v Ø Ø Ø v PROCEDURE NO MEETING REFER VERY SERIOUS TRANSGRESSION BE PREPARED TO TESTIFY IN A HEARING

CASE STUDY 3 v STATEMENTS OF WITNESSES v PROCEDURE NO MEETING REFER VERY SERIOUS TRANSGRESSION Ø Ø Ø