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We discussed in our previous publications the principles and concept of dismissal. We need to look at the basics, where we reflect on the rules and standards of discipline in workplaces. It is from these that we will understand how discipline in the workplaces should be effectively and efficiently managed. The following are basic steps for effective managment of discipline in workplaces, according to the prominent writer Noelle Forseth (https://wheniwork.com/blog/employee-discipline):
One common phenomenon therefore in the management of discipline which we highlight in this paper is to have in place formal rules that regulate discipline in the workplace. The rules are formulated for management to maintain discipline and to create knowledge and certainty about disciplinary standards expected in the workplace.
The rules that govern workplace conduct come from the following sources:
These are given different names and titles depending on what a particular enterprise prefer to call them. The disciplinary codes generally set out rules that govern the relationship between the employer and employees in the area of discipline. The most common parts of the rules are those which make provision for disciplinary standards. These include the procedure for conduct of disciplinary actions; different types of acts which may constitute misconduct in the establishment; sanctions which may be imposed where the employee is found to be in breach of discipline; and where possible the procedure for appeal where disciplinary sanction has been imposed. The disciplinary codes may differ from employer to employer. Some employers prefer to have them written comprehensively in a document while others have them written in a shorter form which is not very complex. Others do not have them in writing at all but ensure that employees are aware of them through oral orientation.
There is no legal requirement that a disciplinary code be in writing. Employers may only be encouraged to have them in writing for accessibility purposes and to ensure that employees are undoubtedly conversant with the contents thereof.
Disciplinary rules recognised under the common law:
The rules are common in workplace practices and have been recognized by the Courts as necessary for an establishment to be run efficiently to achieve perceived goals. Examples of these rules include the rule that an employee shall not steal from the employer; or that the employee shall not compete with his employer in the same line of business; or that the employee shall maintain a reasonable efficiency in the performance of duties. An employee may be charged for contravention of the rules even though they are not specifically mentioned in the disciplinary code or made known to the employees as existing in the workplace. The presumption is that the rules are known by employees and that the establishment cannot operate in the ordinary sense if there are no such prohibitions.
Rules found in legislations:
In most countries legislations have minimum standards governing conduct of employees in workplaces in certain specific areas such as health and safety, leaves and others. An employer may institute disciplinary action against an employee relying on the rule that an employee is presumed to be aware of by virtue of it being contained in the legislation. It is recognized however that legislations are generally not meant to provide terms which are specific to a particular workplace
The legislation may be used as a basis for formulation of a rule that operates in a workplace or contained in a disciplinary code.
Rules derived from workplace practices or agreement between the employer and the employees:
Some rules are said to exist in a workplace by virtue of practice which has been established and followed for a long time. If a practice has been relied upon to discipline an employee the employer may take the practice as a rule governing the conduct of employees in that area of operation. Some rules exist as a result of express agreement between the parties to the employment relationship, for example a collective agreement. Even though collective agreements are formulated for bargaining purposes they usually contain a variety of provisions such as disciplinary procedures, grievance handling and retrenchment procedures.
Disciplinary rules generally give rise to legally enforceable rights. If they are enforced, for example through disciplinary actions the employer would have the right in law to impose a sanction. It may be written in specific terms which sanction shall apply to a breach of the rule. The employer is not bound in law to state the applicable sanctions for a breach of discipline. However, the sanction that may be imposed in any situation may depend on the gravity of the offence and the number of breaches by the employee concerned. The employer’s disciplinary authority does not give the employer power to frame and enforce unreasonable and illegal rules.
There are broad standards against which good disciplinary rules may be assessed. Some standards are derived from international law, for example the ILO Termination of Contract of Service Convention while others are recognized under the common law. The standards are meant to assess the validity of a workplace rule and the legality of the sanctions for the infringement of the rule. Thus the following standards are required of a disciplinary system:
In modern workplace situations both employers and employees are made to play a role to ensure that discipline is maintained and disciplinary processes are effective. Some employers involve employees through their representations in the formulation of disciplinary rules and related policies. Even in disciplinary processes employees’ representatives play a role to ensure that justice prevails and fair decisions are arrived at. Employers are advised to have amongst their management personnel people who are well trained and exposed to manage disciplinary processes. It must be remembered that to have the process managed successfully the employer must ensure that the process is maintained in a procedurally fair manner.