Unit 9: – Grievances, Disputes and

Discipline BBS 130 – Human Resource Management

GRIEVANCES, DISPUTES AND DISCIPLINE

1.0. INTRODUCTION:
No relationship is without its difficulties, problems and challenges. This is equally true about the
Employment relationship. That is to say, however sound the relationship between the management
team in an organization and their workforce may be there is always some possibility of
misunderstanding on both sides. Thus there is a likelihood that management might hurt (by their
decisions or actions) the entire workforce or some sections of the workforce. When this occurs, a
dispute is immanent. In some cases however, it is employees at individual level that might be hurt by
management’s action or indeed by the actions of fellow employees; this would be described as a
grievance. Above all, many are the times when employees – especially as individuals – might hurt
management by going against the laid down rules and code of conduct in which case they attract
disciplinary action.

Form these explanations it is evident that there are actions that are initiated by the workers – either
collectively or individually – namely disputes and grievances. There are also those actions that are
initiated by the employer against the employees I the event that the latter commits an offence. This
lecture is centered on these three key issues. Apart from attempting to explain the nature and scope of
each of these concepts, it endeavors to illustrate the procedures that ought to govern these eventualities.

2.0.DISPUTES AND GRIEVANCES:

For purposes of this discussion the disagreements between the employer and employee are divided into
two categories:
 Collective disputes (henceforth referred to simply as ‘disputes’), involving issues taken up
on behalf of groups of employees by their representatives; and
 Individual disputes (henceforth referred to as ‘grievances’), involving individual employees
only.

2.1.Disputes:

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Unit 9: – Grievances, Disputes and
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The present legal definition of a collective dispute is based on the meaning given to the term ‘trade
dispute’ in the Trade Union & Labor Relations (Consolidation) Act, 1992 (TULRCA) of the United
Kingdom. To be considered a dispute the following conditions must be fulfilled:
 The dispute must be between workers and their own employer
 The dispute must be wholly or mainly about matters directly affecting their terms and
conditions of employment.

2.1.1. Forms of industrial disputes

Industrial dispute – also called industrial action – may take the followings forms:
(a) Picketing: Picketing is a tactic that has been employed by trade unions since about a
century or more ago. Basically it consist of an attempt to enforce a strike and its effects by
placing union members at the gates of the employers premises in order to persuade fellow
employees and others not to cross the picket line and go in to work. Trade unions and union
members will be immune from civil action when picketing so long as certain conditions are
fulfilled. It is important to note that picketing is only permissible at the place of work, and
not, for example, at the private residence of an employer.

(b) Strikes: A strike is a form of industrial action taken by employees against their employer by
means of stropping work. Most strikes are a result of the parties’ inability to achieve a
settlement of some dispute over wages and other conditions of employment.
(c) Go-slows: this is when employees work at a very slow pace.
(d) Working-to-rule: this is when workers purposely follow all the laid down rules
surrounding their job in or order to delay the progress of their work.
(e) Overtime ban: when the employees refuse to work overtime or for additional hours of
work apart from their normal working hours.
(f) Sit-in protest: whereby employees report for work, but just down and do no work.

2.1.2. Disputes Procedures

One of the key ways by which most organizations avoid strikes and other forms of industrial action
instigated by trade unions is by drawing up a mutually agreed procedure for dealing with collective

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disputes. Sometimes the procedure is contained in a negotiating agreement as part of the total
arrangements for collective bargaining, union recognition rights, and agreements about the content of
bargaining and other issues. In other cases a separate disputes procedure is agreed upon, as in the case
of the engineering industry in UK (Cole, 2002).

The stages of a typical disputes procedure for the handling of collective disagreements are likely to be
as follows:

First stage

Union representative raises issues with

department/section manager

Second stage

Issue is discussed by company personnel

manager and convener of shop stewards and /
or local trade union officer

Third stage

Issue is discussed by company Managing

Director and regional/national officers of union

Final stage

If internal procedures have been exhausted,

either side may seek conciliation via ACAS, or
both sides may agree to seek some form of
arbitration

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Unit 9: – Grievances, Disputes and
Discipline BBS 130 – Human Resource Management

2.1.3. Role of third Parties in Industrial Disputes

Third parties such as Government (through bodies such as the Ministry of Labour and Social security
(MoLSS), etc.) play a role in resolving industrial disputes in organisations. In the United Kingdom, the
third party role is often played by a body called the ‘Advisory, Conciliation and Arbitration Service’
(ACAS), which was established by the Employment Protection Act 1975 of the United Kingdom. The
terms of reference of ACAS at the time of its formation were as follows:
 Promoting the improvement of industrial relations;
 Encouraging the extension of collective bargaining; and
 Reforming the collective bargaining machinery.

In relation to collective disputes between employers and trade unions, ACAS – in the case of the UK,
or the MoLSS – in the case of Zambia, offers three main services - conciliation, mediation and
arbitration. The distinctions between these three are briefly as follows:

(a) Conciliation: Conciliation is often described as an Alternative Dispute Resolution (ADR)

process whereby the parties to a dispute use a conciliator, who meets with them (parties)
separately in an attempt to resolve their differences. They do this by lowering tensions,
improving communications, interpreting issues, providing technical assistance, exploring
potential solutions and bringing about a negotiated settlement. Third parties like ACAS offer
help and advice aimed at bringing the disputing parties to the point where they themselves can
agree a mutually acceptable solution. This approach is voluntary, and the agreements reached
are the responsibility of the concerned parties.

(b) Mediation: Mediation is another form of Alternative Dispute Resolution (ADR). It is basically
a way of resolving disputes between two or more parties with concrete effects. Typically, a
third party, the mediator assists the parties to negotiate a settlement. The term "mediation"
broadly refers to any instance in which a third party helps others reach agreement. More
specifically, mediation has a structure, timetable and dynamics that "ordinary" negotiation
lacks. The process is private and confidential, possibly enforced by law. Participation is
typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs

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Unit 9: – Grievances, Disputes and
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the process. Mediators use various techniques to open, or improve, dialogue between disputants,
aiming to help the parties reach an agreement.

(c) Arbitration: Arbitration is a technique for the resolution of disputes outside the courts, where
the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or arbitral
tribunal), by whose decision (called AWARD) they agree to be bound. It is a resolution
technique in which a third party reviews the evidence in the case and imposes a decision that is
legally binding for both sides and enforceable.

Arbitration can be either voluntary or mandatory (although mandatory arbitration can only
come from a statute or from a contract that is voluntarily entered into, where the parties agree to
hold all existing or future disputes to arbitration, without necessarily knowing, specifically,
what disputes will ever occur) and can be either binding or non-binding. Non-binding
arbitration is similar to mediation in that a decision cannot be imposed on the parties. However,
the principal distinction is that whereas a mediator will try to help the parties find a middle
ground on which to compromise, the (non-binding) arbitrator remains totally removed from the
settlement process and will only give a determination of liability and, if appropriate, an
indication of the quantum of damages payable. By one definition arbitration is binding and so
non-binding arbitration is technically not arbitration.

It must be noted, therefore, that the three concepts are different one from the others. One significant
difference between conciliation and mediation, for instance, lies in the fact that conciliators possess
expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for
settlement terms and can give advice on the subject-matter. Conciliators may also use their role to
actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a
duty to provide legal information. This helps ensure that agreements comply with relevant statutory
frameworks. Therefore conciliation may include an advisory aspect.

Mediation is purely facilitative: the mediator has no advisory role. Instead, a mediator seeks to help
parties to develop a shared understanding of the conflict and to work toward building a practical and

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lasting resolution. Conciliation differs from mediation in that the main goal is to conciliate, most of the
time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that
optimizes party’s needs, takes feelings into account and reframes representations. Both mediation and
conciliation work to identify the disputed issues and to generate options that help disputants reach a
mutually satisfactory resolution. They both offer relatively flexible processes. Any settlement reached
generally must have the agreement of all parties. This contrasts with litigation, which normally settles
the dispute in favor of the party with the strongest legal argument.

Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal
standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes
no decision, and makes no award.

2.2.Grievances
Up to this point, the lecture has dealt with disputes – or what was earlier called ‘collective grievance.
This particular section considers the disputes that arise in practically every organization between
individuals and their managers; these are grievances. Whereas, in strike terms, nine out of ten firms do
not experience a strike in a year, in the case of grievances the situation is reversed, with hardly an
employer completely free of grievances in the course of twelve months.

Since individuals and their problems are as much a part of employee relations as collective issues, then
it is in the interest of both management and trade unions to have a written procedure for dealing with
grievances. There is also the point, of course, that individual disputes, if let to fester, may themselves
lead to a collective dispute. The main object of the grievances procedure, therefore, is to settle the issue
at the earliest possible stage.

2.2.1. The Grievance Procedure:

The stages of a typical grievances procedure are shown in Figure below. The procedure is intended to
inform employees of their rights in the matter of grievances. Whilst the procedure gives the employee
opportunity to raise his or her grievances at the highest possible level, the main aim should be to enable
such disputes to be resolved as close as possible to their source. This, of course, depends on the degree

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of the authority given to supervisor and junior managers to resolve grievances at their level. In an
organization that believes in delegation, this will present no problem. Where, however, the organization
reserves disputes of any kind to senior managers only, then inevitably grievances will not easily be
settled at the earliest possible stage. A feature of effective grievances procedures is that include time-
limits at each stage.

Thus, at a stage one five working days is usually the limit within which a supervisor must reply to the
aggrieved person. The inclusion of time-limit helps to speed the entire process, particularly from the
management’s point of view. A busy manager is much more likely to set aside time for dealing with
time for dealing with a grievances if he is subject to an agreed time-limit.

In order that justice is not only done, but seen to be done, it is usual for the Procedure to permit an
aggrieved person to take a friend or trade union representative along with him or her to the second and
subsequent stages. The presence of this other person helps to ensure ‘fair play’, not only for the
employee concerned, but also for his or her management, for sometimes a flimsy or contrived
grievance can be discredit by the employee’s representative. The right to be accompanied by a fellow
employee or trade union official is now enshrined in law (Employment Relations Act 1999, s.10).

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Unit 9: – Grievances, Disputes and
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Employee raises grievances with immediate supervisor

If matter not settled, it is taken to the next level of management,

and the employee may be accompanied by a friend or trade union
representative

If the matter is still not resolved, it is taken to a senior

management level, and the employee may take a
representative as before

If the employee is still not satisfied he/she may appeal to the

ManagerFigure
Director38.1 stages of typical grievances procedure

Once a grievance has passed beyond the first stage, it necessarily gathers greater formality. Hence
written records should be kept after that stage. Such records will be extremely useful if the grievance
turns eventually in to a collective dispute, involving the use of the organization’s collective disputes
procedure.

Whilst grievances are almost inevitable in any organization, their numbers can be kept to a minimum
by maintaining effective communication between employees and their immediate supervisor/managers.
It is helpful if conditions of employment, in the broadest sense, are open to discussion at any time on an
informal basis, in addition to any formal negotiations that may take place as part of collective
bargaining. A firm with a well-motivated workforce and adequate communication procedures can
expect little in the way of grievances.

3.0.DISCIPLINE IN THE WORKPLACE

During their course of employment, workers are bound to commit one form of offence or the other.
Some of the offences may not be so grievous – and hence requiring minimal or no punishment at all;
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while others may be extremely aggravating – and hence calling for stiffer sanctions. In other words,
offences like late coming, and absenteeism from work may be considered minor misconduct; while
offences like fraud, and malicious damage to company property may be regarded as gross misconduct.
Whatever the case, the question is: What sanctions should management impose on an employee who
commits an offence? Should he/she be suspended, fired, or simply warned? Normally every
organisation will have a set of disciplinary procedures.

3.1.Scope and nature of Discipline:

Discipline in the workplace is the means by which supervisory personnel correct behavioural
deficiencies and ensure adherence to established company rules. As a matter of rule all employees are
expected to meet performance standards and behave appropriately in the workplace. Disciplinary or
corrective action is a process of communicating with the employee to improve unacceptable behavior
or performance. Thus, the purpose of discipline is to correct behavior; it is not designed to punish or
embarrass an employee.

Often, a positive approach may solve the problem without having to discipline. However, if
unacceptable behaviour is a persistent problem or if the employee is involved in a misconduct that
cannot be tolerated, management may use discipline to correct the behaviour.

In general, discipline should be restricted to the issuing of letters of warning, letters of suspensions, or
actual termination. Employers should refrain from “disciplining” employees by such methods as
altering work schedules, assigning an employee to do unpleasant work, or denying vacation requests.

3.2.Sources of disciplinary action:

Disciplinary action may be taken against an employee on account of the following broad areas: poor
performance, misconduct and gross misconduct.

(a) Poor performance (means): This could be expressed in the form of consistent failure to
perform work to a reasonable and acceptable standard; and /or evidence of negligence or
inadequate attention to the requirements of the job.

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(a) Misconduct: Misconduct refers to behavior that abrogates the code of conduct of a company in
a less severe way. This offence is not big enough so as to attract stiff punishment against the
culprit. Misconduct means breaches, infringements or non-observance of any of the general
rules or of the specific working rules, such as poor attendance, bad time-keeping, etc. It can be
expressed in failure to obey the lawful and reasonable instruction of a supervisor; unreasonable
or unacceptable conduct e.g. abusive behavior, being under the influence of alcohol; and
threatening violence on a colleague or member of the public whilst at work.
(a) Gross Misconduct: Gross misconduct, unlike misconduct, refers to abrogation of a company’s
laws, etc., in so severe a way that the only remedy the employer is left with is instant dismissal
of an employee from employment. Examples of actions that could be classified as gross
misconduct include the following: falsifying various claim sheets such as time-sheets, bonus
sheets, car allowance, etc.; malicious damage to company property; Sexual misconduct in work
which demands high levels of personal behavior, e.g. in work with children.

3.3.Examples of misconduct and gross misconduct:

In addition to examples identified above, the following actions could be classified also as misconduct
and gross misconduct:
 Excessive tardiness; Failure to notify of an absence
 Insubordination; Rude or abusive language in the workplace
 Failure to follow “Departmental Rules or Policies “, i.e., not wearing safety equipment, not
following correct cash handling procedures
 Dishonesty; Theft
Of course, discipline may be required for a number of other misconducts. The question that needs to be
asked is if the Employer has “just cause” to impose a form of discipline.

3.4.Just cause and its effects on discipline:

In reviewing whether or not management was correct in its choice to discipline, arbitrators have looked
at a number of factors. These factors must be taken into account by management when deciding to use
discipline:

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(a) Did the employee clearly understand the rule or policy that was violated? For example, were
the work rules or policy provided to the employee prior to the violation. It is management
responsibility to prove that the employee knew the rule or policy.
(b) Was the rule or policy consistently and fairly enforced by management? For example, did
management have a history of ignoring the departmental policy on wearing safety equipment,
but singled out an employee for discipline anyway.
(c) Did the employee know that violating the rule or policy could lead to discipline?
(d) The seriousness of the offense in terms of violating company rules of conduct or company
obligations: For example, being a few minutes late for a shift would not be viewed as being as
serious an offense as striking another employee or stealing University property.
(e) The long service of the employee.
(f) The previous good (or bad) work record of the employee.
(g) Provocation: Was the employee pushed into acting rudely or violently as a result of
management or a customer’s actions. This is a very common defense for employees involved in
insubordination.
(h) Did the employee admit to the misconduct and apologize for their behavior? Arbitrators will
often rule harshly against employees who are deceptive during an investigation and who show
no remorse for their actions.

This list is not exhaustive, but it does include some of the more important factors that should be
reviewed prior to issuing discipline.

3.5.The Disciplinary Procedure:

Whereas grievances are initiated by the employee, disciplinary matters are initiated by management. At
work discipline is a question of (a) devising appropriate rules of behavior for employees and (b) of
providing fair and consistent means of enforcing them. ACAS in its code of practice on disciplinary
matters suggests the following as model features of a disciplinary procedure.

The procedure should:

 Be in written form

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 Specify to whom it applies

 Provide for the speedy progress of disciplinary hearings
 Indicate the various forms of disciplinary action that may be taken (warnings dismissal, etc.)
 Specify appropriate levels of authority for exercising disciplinary action
 Ensure that individuals are informed of the disciplinary charges made against them
 Permit such individuals to state their case, and to be accompanied by a friend or trade union
representative (see Employment Relations Act 1999,s.10)
 Ensure the proper investigation of every case before disciplinary action is implemented
 Ensure that individuals are informed of the reasons for the action being taken against them
 Ensure that no individual is dismissed for a first offence except in cases of gross misconduct
 Provide for a right of appeal.

The standards expected of employees are set out in various documents such as company rule-books,
employee handbooks and disciplinary procedures. There will also be ‘unwritten’, or implied, rules.
Since is as much a matter of general behavior as of specific behavior, few organization’s specify every
rule whether or not an offence is the cause of disciplinary action depends on the nature of the
circumstances, on management’s previous attitudes and on the culture of the organization generally.

What in one firm would be a dismissible offence, be far less serious in another firm. For example,
smoking in certain manufacturing operation is so dangerous that breach of this rule will lead to instant
dismissal. In another situation a ‘non-smoking’, rule based on the general possibility of a fire hazard
would probably be dealt with on the basis of warnings. Below is an example of a disciplinary procedure
indicating steps to be followed:

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Object:
The purpose of this procedure is to ensure fair treatment of operatives who become liable to disciplinary action
because of failure to meet satisfactory standards with regard to conduct, job performance, attendance or time
keeping..

Responsibilities:

In all cases, other than instant dismissal, the following procedure will apply:

Stage 1. In the first instance the foreman… will warn the operative verbally.
The warning will be recorded…

Stage 2. In the event of failure to meet the agreed standards within a reasonable period of time
of the verbal warning a written notice signed by the relevant Management will be given
to the operative…
Stage 3. In the event of continued failure to meet the agreed standards, written notice of
dismissal will be given by a senior manager…
F
i
Right of Appeal:
g
u
In the event of any dispute arising on this agreement, the operatives shall have the right of appeal to a higher level
r
of management…
e

Source: Disciplinary procedure at ceramics industry (Cole, 2002)

These steps may be summarized as follows:

 Oral warning to employee
 First written warning
 Second or final written warning
 Suspension of employee with pay
 Suspension of employee without pay

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 Dismissal.

A key issue in any disciplinary procedure is that of authority to act. In order to achieve fairness and
consistency, individual managers and supervisors need to know what the limits of their authority is
when it comes to disciplinary action. It is important that the procedure makes clear who is empowered
to do what. Usually, oral warnings are left to the immediate supervisor or manager; written warnings
usually involve the section or department manager, with a copy to personnel; second or final warnings
are usually agreed by the site Personnel Manager before being issued; suspension (with or without pay)
and dismissal are usually authorized by a senior manager or director. As in the case of grievances, an
individual who is going through the disciplinary procedure may take a colleague or union
representative with him or her.

3.6.Discipline process:
The disciplinary procedure should, as a matter of necessity, contain a process. This process has a
number of events or stages which are identified below:

3.6.1. The investigation stage:

This is perhaps the most important part of the discipline process. Discipline cases are often won or lost
based upon the amount of effort put into the investigation. At this stage the manager should be
gathering facts and evidence to confirm what took place. This evidence might include witness
statements, a report from a private investigator, documentary evidence, interviewing witnesses to the
incident, and most important of all, interviewing the employee involved in the misconduct.

The employee interview is the key to the investigation, and it is should play a major in role in
management’s decision to issue discipline. Even when there is overwhelming evidence of an
employee’s guilt, it is still essential to interview the employee. An employee involved in misconduct
should be provided an opportunity to explain themselves.

The main purpose of an investigation is to determine to the best of a managers’ ability the facts
surrounding misconduct in the workplace. As a result, investigations by their very nature should be

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conducted in a fair and objective manner. The need for objectivity and fairness is further reinforced by
the fact that in a unionized workplace, employees have the ability to grieve discipline that is issued to
them. Any discipline that is grieved, could eventually find itself before an arbitrator who will examine
in detail the strength of the evidence and the fairness of the discipline.

A number of points may be considered when conducting an investigation:

(a) Conduct an investigation with another member of Management:

Where possible, two members of management should work together when conducting an investigation
that could result in discipline. Ideally, these two managers will interview all witnesses together. Having
two managers conduct an investigation provides the opportunity for Management to call two witnesses
to testify to events. It also provides for better note taking and documentation of questions and answers
during interviews. Consideration should be given to whether or not an investigating manager would
make a good witness in a future hearing. Some individuals do not make good witnesses. Consideration
should also be given as to whether or not a manager will be available six months to a year later to
testify in any future hearing. A manager who will be leaving the University is not a good choice as an
investigator.

(b) Carry out an investigative interview:

An investigative interview is the most valuable tool at Management’s disposal for gathering
information about misconduct in the workplace. Some of the more important reasons for conducting
interviews are:
 to provide an opportunity for the employee involved in the misconduct to explain his or
her actions
 to determine what involvement, if any, an employee had in a misconduct
 to gather direct evidence from the employee involved in the misconduct
 to gather evidence from third party witnesses about a misconduct

Except in unusual circumstances, investigative interviews should always take place before discipline is
issued. Discipline should never be issued during the interview process. Often employees or union

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representatives will ask in the interview questions like: “what discipline will be issued here?” or
“where is this going?”. These types of questions should be answered by saying that Management is still
conducting an investigation and that any discipline will be determined when the investigation is
complete. Managers should never engage in discussion on potential discipline during investigations.
The interview process is for gathering information, not for issuing discipline. Discipline should always
come later and in writing.

The interview, if conducted successfully, should help to establish whether or not an employee did in
fact take part in misconduct and the reasons why the employee did the misconduct. By conducting a
thorough interview, it also makes it difficult for the employee or witnesses to “change their story” at a
later date.

When interviewing employees who are suspected in misconduct it is important that all the evidence
that Management has gathered during the investigation stage is raised with the employee in the
interview. An employee should leave the interview knowing what the specific allegations against them
are. Management should not “hold back” evidence that it has against the employee. The questions
asked of the employee should be as specific as possible, ideally with dates and approximate times that
the event(s) occurred.

(ii) Union representation during an investigation: There is a requirement for a shop steward to
be present when interviewing a unionized employee where there is a reasonable belief that
the employee may be disciplined. There is no requirement for a steward to be present if
Management wants to interview an employee who was only a witness to misconduct or who
is providing a complaint regarding another employee or member of management.

(iii) Talk to as many witnesses as possible when conducting an investigation: If it has been
determined that there are witnesses to a misconduct, Management should meet with these
witnesses in order to determine the best possible picture of the incident that has occurred.
These meetings should be conducted formally, if possible, and notes taken of the witnesses’
statements and answers to questions. If possible, request a written statement from any

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witnesses. While a written statement is often helpful, it does not replace the need to sit down
and formally interview a witness.

(iv) Investigate the paper trail: There is often a substantial amount of “documentary” evidence
that can be used to support evidence of misconduct. Examples of this include financial
records, time cards, phone records (the University can obtain a record of every telephone
call made on campus) computer records, e-mails, policy documents, performance appraisals
etc. When conducting an investigation, the security of this evidence must always be
considered. There is always the possibility of this type of evidence being destroyed or
altered if news of an investigation becomes known. During an investigation, the employee’s
personal file should also be reviewed to determine if the employee has in fact been
disciplined previously. If the employee has been previously disciplined, this should be
mentioned in any subsequent discipline letter.

(v) Seek outside help to investigate evidence of misconduct: At times it may not be possible
for a manager to investigate into misconduct without the help of an expert. In fact many
serious and complex cases of misconduct can only be properly investigated with the
assistance of private investigators, forensic auditors, computer specialists and the like. This
can be especially true with misconduct involving WCB or sick leave abuse, complex cases
involving fraud or theft, and the misuse of computer technology. Choosing to hire an
outside party to investigate into misconduct can be an effective tool for providing strong
evidence of misconduct. It is suggested that you discuss the use of expert investigators with
H.R. prior to bringing them into an investigation.

3.6.2. The discipline stage.

Once management has heard the employee’s explanation in the interview, verified the facts and
gathered all the evidence, the decision to discipline can be made. Ideally, the decision should be made
after discussions with other people in management, and talking about the specifics of the case with the

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Human Resources Department. The basis for discipline should also take into account, the factors
discussed in the section on “just cause”, i.e., the employee’s past record, the severity of the incident,
was the employee provoked. Ideally, discipline will not be issued “verbally” to an employee. Discipline
should be issued in writing to an employee and only after the investigation and interviews have taken
place.

After the interview(s) is completed and management has gathered all available evidence, the decision
to discipline can then be made. The decision to discipline should be based upon a number of factors.
From Management’s perspective it needs to be determined whether or not the employee’s behaviour in
the workplace needs to be corrected or stopped. If so, discipline is clearly an option to consider. That
said, there may be other options available, especially if there are other factors that may have played a
role in the misconduct i.e. mental health issues or substance abuse. In these circumstances, it is very
important to discuss these issues with Human Resources before making a decision.

Another important factor that needs to be examined prior to issuing any discipline is the quality of the
evidence. Put simply, Management needs to be able to prove its case for discipline. The accepted
standard for proving guilt in labour law is based upon a “balance of probabilities” (this is a lower
standard than “beyond a reasonable doubt” which is used in criminal law). If on a “balance of
probabilities” Management feels that the employee has been involved in misconduct, than discipline is
certainly an option. If the evidence is weak management should not pursue discipline.

Management should also take into consideration the several principles raised in ‘just cause and effect
on discipline’ earlier. These principles are the ones that arbitrators will look at when reviewing a
manager’s discipline. For example, management might reduce the discipline imposed if the employee
had a ten year clean record and had shown remorse and apologized for their actions.

Another factor to look at is the “Principle of Progressive Discipline”. Under this principle, discipline is
administered in progressive stages. Progressive discipline means that management first tries to resolve
the problem without imposing a severe penalty such as a long suspension or termination. However, if
the employee’s behaviour is not corrected, then the penalty is increased to the final step of actual

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termination. For example, an employee who appeared late for work a few times would first receive a
letter or warning rather than a suspension. It should also be noted that some misconducts are so severe
that progressive discipline need not be followed. Serious misconducts such as theft, fighting,
conducting illegal activity on the work site, etc., can lead to termination on the first offense.
Prior to issuing discipline it is important to take all of the above factors into consideration. The Human
Resources department can be very helpful in this process and should be consulted before discipline is
issued.

The following sequence of events summarizes the typical steps taken once misconduct occurs the
workplace.
 A misconduct occurs in the workplace
 Management investigates the misconduct, interviews witnesses and gathers evidence
 Management interviews with the employee suspected in the misconduct
 Management reviews all the evidence and consults with H.R. on the appropriate discipline
 Issuing the letter of reprimand, letter of suspension, or termination.

3.7.Types of Misconduct:
There are two types of misconduct. The first one is minor misconduct, while the second one is gross
misconduct. By definition, the former refers to abrogation of the code of conduct in a less server way,
while the latter refers to abrogation of the code of conduct in a more server way. The punishment for
minor misconduct is normally not server. Rather the punishments for gross misconduct is more server.
The two types of misconduct are illustrated in the policy on disciplinary procedure adapted from an
institution – SRCB below. The focus in this example is the type and examples of misconduct; as well
as the sanctions meted out against offenders.

TITLE: Disciplinary Code and Procedures

Policy Number DRAFT – 0019
Effective Date
Revision Date
Approved

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1. PURPOSE
1.1. To support constructive labour relations in SRCB.
1.2. To promote mutual respect between employees and employer.
1.3. To ensure that managers and employees share a common understanding
of misconduct and discipline.
1.4. To promote acceptable conduct.
1.5. To provide employees and the employer with a quick and easy
reference for the application of discipline.
1.6. To avert and correct unacceptable conduct.
1.7. To prevent arbitrary or discriminatory actions by manages towards
employees.

2. PRINCIPLES
2.1. Discipline is a corrective measure and not a punitive one.
2.2. Discipline must be applied in a prompt, fair, consistent and
progressive manner.
2.3. Discipline is a management function
2.4. Disciplinary code is necessary for the efficient delivery of
service and the fair treatment of the public and ensures that
employees:
2.4.1. Have a fair hearing in a formal or informal setting;
2.4.2. Are timeously informed of allegations of misconduct made against
them;
2.4.3. Receive written reasons for a decision taken;
2.4.4. Have the right to appeal against any decision.
2.5. Disciplinary procedure shall take place in the place of work and be
understandable to all employees
2.6. If an employee commits misconduct that is also a criminal offence,
the criminal procedure and the disciplinary procedure will continue
as separate and different proceedings,
2.7. Disciplinary proceedings do not replace or seek to imitate court
proceedings.

3. ACTS OF MISCONDUCTS (The list is not exhaustive).

3.1. An employee will be guilty of misconduct if he or she, among other
things:
3.1.1. Fails to comply with or contravenes an Act, regulation or legal
obligation;
3.1.2. Wilfully or negligently mismanages the finances of the
Institution;
3.1.3. Without permission possesses or wrongfully uses the property of
the Institution, another employees and or a visitor.
3.1.4. Wilfully, intentionally or negligently damages and or causes loss
of Institution property;
3.1.5. Endangers the lives of self or others by disregarding safety
rules or regulations;
3.1.6. Prejudices the administration, discipline or efficiency of the
Institution, office or institution of the Institution;

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3.1.7. Misuses his or her position in the Institution to promote or to

prejudice the interest of any political party;
3.1.8. Steals bribes or commit fraud;
3.1.9. Accept any compensation in cash or otherwise from a member of the
public or another employee for performing his or her duties
without written approval from the Institution;
3.1.10. Fails to carry out a lawful order or routine instruction without
just or reasonable cause;
3.1.11. Absents or repeatedly absents him/herself from work without
reason or permission;
3.1.12. Commits an act of sexual harassment;
3.1.13. Engages in sexual relations with a student/Learner;
3.1.14. Discriminates against others on the basis of race, gender,
disability, sexuality or other grounds outlawed by the
constitution;
3.1.15. Performs poorly or inadequately for reasons other than
incapacity;
3.1.16. Without written approval from the Institution, performs work for
compensation in a private capacity for another person or
organisation either during or outside working hours;
3.1.17. Without authorisation, sleeps on duty;
3.1.18. While on duty, conducts herself or himself in an improper,
disgraceful and unacceptable manner.
3.1.19. While on duty, is under the influence of an intoxicating,
illegal, unauthorised, habit-forming and alcohol;
3.1.20. Contravenes any code of conduct of the Institution,
3.1.21. Assaults, or attempts or threatens to assault, another employee
or person while on duty;
3.1.22. Incites other personnel to unprocedural and unlawful conduct;
3.1.23. Displays disrespect towards others in the workplace or
demonstrates abusive or insolent behaviour;
3.1.24. Intimidates or victimises fellow employees
3.1.25. Prevents other employees from belonging to any trade union or
body;
3.1.26. Operates any money lending scheme for employees for own benefit
during working hours or from the premises of the public service;
3.1.27. Carries or keeps firearms or other dangerous weapons in
Institution premises, without written authorisation of the
Institution;
3.1.28. Refuses to obey security regulations;
3.1.29. Gives false statements or evidence in the execution of his or her
duties;
3.1.30. Falsifies records or any other documentation;
3.1.31. Participates in unprocedural, unprotected and/or unlawful
industrial action;

4. FORMS OF DISCIPLINARY ACTIONS

4.1. Corrective Counselling

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This constitutes a first stage of disciplinary action and is aimed

at informing the employee about required standards of performance
and correcting minor instances of misconduct, rather than serving
as a formal warning.

4.2. Verbal Warning

The verbal warning is used for minor infractions and as a first
step in progressive discipline. Written documentation of a verbal
warning is placed in the employee’s personal file for the
supervisor to keep record of the warning issued. Verbal warnings
are valid for a maximum period of six months.

4.3. Written Warning

Written warnings are usually issued for more serious offences, or
in the event of previous verbal warnings have failed to achieve the
desired effect. It is valid for a maximum period of six months and
placed in the personal file of the employee.

4.4. Final Written Warning

When issuing a final written warning, the same procedure must be
followed as for a written warning, but in addition the employee
must be informed that should he/she commit similar offence within a
certain period of time, he/she may be dismissed. The validity of
this warning is generally six months. Final Written warning will be
given according to the employee’s previous records and it will be
placed in the employee’s personal file.

4.5. Suspension
Suspension refers to a situation where an employee is not permitted
to be at the workplace for a stipulated period of time, in either a
paid or an unpaid capacity

4.5.1. Suspension Without Pay

Suspension without pay amounts to the withholding of work and pay
and should not be longer than 3 months.

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4.6. Demotion
To be demoted is to be reduced to a lower rank or grade.

5. CLASSIFICATION OF OFFENCES
5.1. Minor Offences
5.1.1. Coming late to work
5.1.2. Unjustified absence from workplace
5.1.3. Loafing, wasting time, or deliberately working slowly
5.1.4. Playing around at work

5.2. Serious Offences

5.2.1. Absenteeism
5.2.2. Leaving Institution’s premises without permission
5.2.3. Abusing sick leave benefits
5.2.4. Smoking in ‘NO SMOKING’ areas
5.2.5. Falsifying an accident report
5.2.6. Sleeping at the place of work
5.2.7. Below standard work performance

5.3. Very Serious Offences

5.3.1. Being under the influence of alcohol or drugs at work
5.3.2. Deliberately ignoring a manager’s/supervisor’s orders about work
5.3.3. Refusing to carry out legitimate orders
5.3.4. Insulting fellow workers, particularly in cases affecting race
relations
5.3.5. Exposing a subordinate to unsafe working conditions

5.4. Offences which could justify dismissal or suspension for a first

offence
5.4.1. Dishonesty or fraud
5.4.2. Violation of safety or security regulations
5.4.3. Fighting on Institution premises
5.4.4. Assault on Institution premises
5.4.5. Intimidation
5.4.6. Carrying dangerous weapons on Institution grounds
5.4.7. Deliberately damaging Institution premises
5.4.8. Being in possession of drugs on Institution premises
5.4.9. Unauthorised or negligent use of Institution equipment, whether
or not this leads to damage of equipment.
5.4.10. Engages in sexual relations with a student/learner.

6. EXAMPLE OF HOW EMPLOYEES CAN BE SANCTIONED

6.1. Minor Offences
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6.1.1. 1st Offence – Verbal warning

6.1.2. 2nd Offence – Written warning
6.1.3. 3rd Offence – Final written warning
6.1.4. 4th Offence – Disciplinary action (Hold a disciplinary hearing,
and if all the facts point to guilt i.e. The employee has already
received three warnings for the same or similar offence, then
dismissal)

6.2. Serious Offences

6.2.1. 1st Offence – Written warning
6.2.2. 2nd Offence – Final written warning
6.2.3. 3rd Offence – Disciplinary action (Hold a hearing, and if all the
facts points to guilt i.e. the employee has already received two
warnings for the same or similar offence, then dismissal).

6.3. Very Serious Offences

6.3.1. 1st Offence – Final written warning
6.3.2. 2nd Offence – Hold a hearing and if all the facts point to guilt,
summary dismissal

6.4. Dismissible Offences

6.4.1. 1st Offence – Hold a hearing and if after consideration of all
the relevant facts the employee is found guilty, dismiss the
employee.

6.5. If the alleged misconduct justifies a more serious form of

disciplinary action, the Institution may initiate a disciplinary
enquiry. The Institution must appoint an employee as a
representative.

7. DISCIPLINARY ENQUIRY
7.1. Notice of Enquiry
7.1.1. The employee must be given notice of at least five working days
before the date of the hearing.
7.1.2. The employee must sign receipt of the notice. If the employee
refuses to sign receipt of the notice, it must be given to the
employee in the presence of a fellow employee who shall sign in
confirmation that the notice was conveyed to the employee.
7.1.3. The written notice of the disciplinary meeting must use the form
Annexure D, and provide:
7.1.3.1. A description of the allegations of misconduct and the main
evidence, on which the employer will rely,
7.1.3.2. Details of the time, place and venue of the hearing, and

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7.1.3.3. Information on the rights of the employee to representation by

a fellow employee or a representative or official of a
recognised trade union, and to bring witnesses to the hearing.

7.2. Precautionary Suspension

7.2.1. The employer may suspend an employee on a full pay or transfer
the employee if:
7.2.1.1. The employee is alleged to have committed a serious offence,
and
7.2.1.2. The employer believes that the presence of an employee at the
workplace might jeopardise any investigation into the alleged
misconduct, or endanger the wellbeing or safety of any person
or Institution property.
7.2.2. A suspension of this kind is a precautionary measure that does
not constitute a judgement and must be on full pay.
7.2.3. If an employee is suspended as a precautionary measure, the
employer must hold a disciplinary hearing within a month or 60
days, depending on the complexity of the matter and the length of
the investigation. The chair of the hearing must then decide on
any further postponement.

8. CONDUCTING A DISCIPLINARY HEARING

8.1. The disciplinary hearing must be held within ten working days after
the notice of a disciplinary hearing has been delivered to the
employee.
8.2. The chair of the hearing must be appointed by the employer and be
an employee on a higher grade than the representative of the
employer.
8.3. The employer and the employee charged with misconduct may agree
that the disciplinary hearing will be chaired by an arbitrator from
relevant sectoral bargaining council appointed by the council. The
decision of the arbitrator will be final and binding and only open
to review in terms of the Labour Relations Act, 1995. All the
provisions applicable to disciplinary hearings in terms of this
code will apply for purposes of these hearings. The employer will
be responsible to pay the costs of the arbitrator.
8.4. If the employee wishes, she or he may be represented in the hearing
by a fellow employee or a representative of a recognised trade
union.
8.5. If necessary, an interpreter may attend the hearing.
8.6. In a disciplinary hearing, neither the employer nor the employee
may be represented by a legal practitioner, unless-
8.6.1. The employee is a legal practitioner or the representative of the
employer is a legal practitioner and the direct supervisor of the
employee charged with misconduct; or
8.6.2. The disciplinary hearing is conducted in terms of paragraph 7.3.c

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8.7. If the employee fails to attend the hearing and the chair concludes
that the employee did not have a valid reason, the hearing may
continue in the employee’s absence.
8.8. The chair must keep a record of the notice of the disciplinary
hearing and the proceedings of the meeting.
8.9. The chair will read the notice for the record and start the
hearing.
8.10. The representative of the employer will lead evidence on the
conduct giving rise to the hearing. The employee or the employee’s
representative may question any witness introduced by the
representative of the employer.
8.11. The employee will be given an opportunity to lead evidence. The
representative of the employer may question the witnesses.
8.12. The chair may ask any witness questions for clarification.
8.13. If the chair decides the employee has committed misconduct, the
chair must inform the employee of the finding and the reasons for
it.
8.14. Before deciding on a sanction, the chair must give the employee an
opportunity to present relevant circumstances in mitigation. The
representative of the employer may also present aggravating
circumstances.
8.15. The chair must communicate the final outcome of the hearing to the
employee within five working days after the conclusion of the
disciplinary enquiry, and the outcome must be recorded on the
employee’s personal file.

9. SANCTIONS
9.1. If the chair finds an employee has committed misconduct, the chair
must pronounce a sanction, depending on the nature of the case and
the seriousness of the misconduct, the employee’s previous record
and any mitigating or aggravating circumstances. Sanctions consist
of:
9.1.1. Counselling
9.1.2. A written warning valid for six month,
9.1.3. A final written warning valid for six months,
9.1.4. Suspension without pay, for no longer than three months,
9.1.5. Demotion
9.1.6. A combination of the above, or
9.1.7. Dismissal
9.2. If an employee is demoted, he/she may only, after a year, apply for
promotion to a higher advertised post without prejudice.
9.3. The employer shall not implement the sanction during an appeal by
the employee.10.

10. APPEAL
10.1. An employee may appeal a finding or sanction by completing Appeal
Form.

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10.2. The employee must, within five working days of receiving notice of
the final outcome of a hearing or other disciplinary procedure,
submit the appeal form to his/her Executing Authority, or to his or
her manager, who shall then forward it to the appeal authority.
10.3. The Appeal Authority may, on good cause shown, condone the late
lodging of an appeal.
10.4. The Appeal authority, who shall consider the appeal, shall be:

10.4.1. The executing Authority of the employee, or

10.4.2. An employee appointed by the executing authority, who was not
involved in the decision to institute the disciplinary proceeding
and who has a higher grade than the chair of the disciplinary
hearing.
10.5. The appeal authority may:
10.5.1. Uphold the appeal, and/or
10.5.2. Reduce the sanction to any lesser sanction
10.5.3. Confirm the outcome of the disciplinary proceeding.
10.6. The employer shall immediately implement the decision of the appeal
authority. Where the appeal authority decides to decides to reduce
the sanction or to confirm the outcome of the disciplinary
proceedings (e.g. dismissal), the sanctions will be implemented by
the employer from a current date.
10.7. Departments must finalise appeals within 30 days, failing which, in
cases where the employee is on precautionary suspension, he/she
must resume duties immediately and await the outcome of the appeal
while on duty.

11. SRCB WARNINGS (DOCUMENTATION)

11.1. Written Warning (Addendum A)
11.2. Final Written Warning (Addendum B)
11.3. Notice of Disciplinary Hearing (Addendum C)
11.4. Notice of Appeal (Addendum D)
11.5. Checklist for Disciplinary Hearing (Addendum E)

3.7.1. Absenteeism and desertion:

Examples of disciplinary sanctions related to absenteeism, and desertion.

3.7.1.1. Absenteeism:

Absenteeism refers to the tendency by an employee to abscond from work. Here one makes oneself
unavailable for work when they should have actually reported. Absenteeism may attract the following
kinds of sanctions:

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Offence Sanction
 Absent for 1 day Recorded/verbal warning (usually given in the presence of a witness such
as a union representative, or supervisor, etc.
 Absent for 2 to 4 days Severe warning. The warning is drafted and filed in a worker’s file. (In
some cases, there is even a deduction from salary).
 Absent for 5 to 6 days Final warning. The culprit is suspended for a number of days; and gets
half salary).
Summary dismissal (10 days is same as 2 weeks). Letter of dismissal is
 Absent for 10 days sent. Normally such letter is not sent through 3rd party (in case person
had died); if must be served to the culprit in person.

3.7.1.2. Desertion:

Desertion refers to absenteeism from work for 10 consecutive days.

 Desertion is a very serious matter;

 Desertion is declared after ten days;
 A worker is deemed to have terminated his/her contract if he/she is absent for 10 days.

4.0. CONCLUSION

The workplace is often characterized by breakdowns in the relationship between the employer and the
employees. Sometimes the breakdown is instigated by the employer who may act unfairly, unjustly, or
inconsistently towards an employee. The employee might take up this issue as a grievance requiring a
solution. If the matter is a cross section of, or the entire workforce, then the employees act in unison to
express their dispute.

Another characteristic of the employment relationship is the issue of dsicpline. This manifest in the
misconduct of the employee which prompts the employer to take action.

28 Kwame Nkrumah University By Patrick Mwela, MZIHRM