3/29/2012

EMPLOYEE DISCIPLINE

By
Lasantha S Salgado
HR Management Consultant & Trainer

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WHAT IS DISCIPLINE?
• Definition: (as a Noun)

“The self control needed to do a job”

“Subjection to control or order”

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WHAT IS DISCIPLINE……?
• (as a verb)

“to train”

“to educate”

“to bring under control”

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WHAT ARE THE VARIOUS TYPES OF

INDISCIPLINE?

“An act should be regarded as an act of

misconduct (indiscipline) if it is inconsistent
with the fulfilment of express or implied
conditions of service or if it has a material
bearing on the smooth & efficient working of
the concern.”

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WHAT ARE THE VARIOUS TYPES OF

INDISCIPLINE…..?
What falls within the scope of misconduct?

• Consider the nature of the business.

• The position the employee holds in

considering what constitutes misconduct.

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CAUTION THOUGH!

Merely because a letter of appointment

contains a clause, a breach of that clause does
not make it misconduct where the clause is
construed by law to be unreasonable or
contrary to public policy.

Remember also that there are many terms

implied into contracts of employment.

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To make life more difficult for us!!...........

There are some actions that should be

expressly included in a contract of employment
and unless they are, they cannot be enforced!
Yet notwithstanding this, an employer may not
be able to act on them in all circumstances and
a LT can regard a term as unreasonable and
grant relief under the IDA “notwithstanding
anything to the contrary in any contract of
service” (Section 31(B4) of the IDA)

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Our law does not specify grounds on

which disciplinary action may be taken
against an employee. However, various
statutes specifically prohibit disciplinary
action on certain grounds. For example
the IDA provides that …………

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You cannot:

• Terminate or reduce grade or class without

good cause.

• Otherwise punish only because the employee

has gained benefits under a Collective
Agreement or under an award of an Industrial
Court, Arbitrator or LT.

(Section 40 of the IDA)

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• This is so where a dispute is pending or has

been referred for settlement to an Arbitrator
or an IC.

• Similar provisions are there in the Shop &

Office Act and the Wages Boards Ordinance.

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SOME GROUNDS OF MISCONDUCT

• Chronic absenteeism & late attendance

• Insubordination (not provoked by management)

• Abuse of a superior officer

• Disobedience

• Assault

• False allegations against superiors

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• Drunkenness

• Theft, misappropriation

• Loss of confidence

• Refusal to accept a transfer (the rule is comply and

then complain)

• Refusal to attend a domestic inquiry or answer

charges
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WHY SHOULD WE DEAL WITH INDISCIPLINE?

• Discipline is needed both in our personal lives and our

business lives.

• In business, it is very necessary as it provides for a

uniform pattern of action and conduct that enables :

a higher productivity

b and standards for QUALITY & SAFETY

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QUALITY
A superior product or service ensures business
continuity, gives a competitive edge and
profitability.

SAFETY
This has to be ensured to provide a safe working
environment for everyone. (there are legal
requirements to be met) Breaches of safety could
lead to drastic consequences – the business itself
could be destroyed, its reputation shattered or its
ability to do business impaired.

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What if there was no discipline?

• Productivity affected.
• Safety & Quality absent.
• Business would be affected.
• ISO certification not possible.
• ISO certified companies will cease to do
business with you.
• Difficulties in removing bad image.
• You lose your customers.
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OUR LEGAL FRAMEWORK

• Is very cumbersome. Many laws. Every area of
employment affected.

• Makes it difficult (but not impossible) to

terminate the services of employees except
for manifest good cause.

• Makes it costly and time consuming to go

thro’ procedures.
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What could we do?

• Have an established disciplinary procedure that
is fair and consistently applied fairly. This will
establish the bona fides of the company.

• Conduct inquiries and establish the facts

objectively. (internal perceptions or knowledge
are just not enough)

• Do not pre-judge the matter or pressurise your

HR Dept. to do what you want!
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What could we do……..?

• Leave the HR Dept. to deal with it professionally. They
have to consider all aspects of a disciplinary issue,
consult lawyers, the EFC, the CEO or Board of
Directors. It takes time, but in the long run it pays.

• If you terminate in haste (and without justification),

you may get an order of re-instatement. The Co.
would lose its credibility and it would be difficult to
enforce discipline.

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What could we do……..?

• Prevent the creation of a ‘bad employer’

image in the minds of those in the LD & the LT.
Once established, it is difficult to erase.

Employees seeking redress could receive more

sympathy and therefore more relief than
necessary.

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The Termination of Employment Act

This is perhaps the single most powerful piece
of legislation that employers want off the
statue books as it prevents the termination of
the services of employees for non disciplinary
reasons and gives unfettered power to the
Commissioner of Labour to make orders of
reinstatement or compensation.

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The essence of the TEA is that the termination

of the services of an employee with not less
than 1 year’s service for any reason
whatsoever otherwise than by reason of
punishment imposed by disciplinary action
shall be effected only with the prior written
consent of the CoL.
Any termination in contravention of this is
“illegal, null and void and of no effect
whatsoever”

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Many have advocated the repeal of the TEA

stating that it prevented DFI in the country and
also was contrary to the idea of a free economy
and entrepreneurship.

However, we must remember that SL does not

have social security and that if termination of
services can take place freely, we could be
fanning the fires of insurgency!

Employers have yet to prove their bona fides in

effecting terminations they allege are in the
interests of their businesses!
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Many initiatives, including legislation

have been made in the recent past to
mitigate the effect of the TEA, but
even as at date, political
considerations have prevented
meaningful modifications, or
amendments to this Act.

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Therefore…

There is a need to distinguish

between disciplinary and non
disciplinary termination.

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SOME DO’S & DON’TS

• Have a ‘Code of conduct’ and ‘Rules of Discipline’ and

make it widely known. Get everyone to sign and accept
them to indicate that they have read and understood
them.

• Take action always. Be consistent and make sure the

rules are followed. If they are breached, it must be
known that known consequences follow. If you ignore
breaches, you would only compromise discipline and
your own authority.

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SOME DO’S & DON’TS……

But…..
This does not mean you ignore reason or
common sense. The action you take could be
just a simple “ this is wrong and should not be
repeated”

Do not always come down on anyone like a

ton of bricks!!

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SOME DO’S & DON’TS……

• When an incident takes place Investigate it
immediately. Get statements from those
involved or those who witnessed it. (if unsure,
call in the HR Dept.) If it includes taking
physical custody of items, do so, but make sure
they are kept safely.

• Inform the HR Dept. ASAP and seek its advice

on the entire matter.

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SOME DO’S & DON’TS……

• Make sure witnesses and physical evidence are
available when inquiry is scheduled and assist
in every way you can to complete the inquiry
fast.

• Do not insist on a particular punishment. Leave

that to the HR Dept. which will do that in
consultation with all concerned. Do make your
wishes known.
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SOME DO’S & DON’TS……

• Never transfer a person out of a section as
punishment (unless that section is in a remote place!)
If you do so, you will only be transferring the problem
and creating a problem for someone else! The advice
is to deal with the problem.

• If a person is found not guilty, do not victimise

him/her in any way. Carry on regardless as otherwise
you would only compromise your authority and the
disciplinary process.

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What is a Code of Conduct?

This is a written compilation of rules to be

followed by everyone in an organisation in
order to align conduct so that the business of
the organisation can proceed without
unnecessary interruption or the image or
reputation of the organisation maintained or
enhanced.

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What should such a Code contain?

It is not possible to itemise and list everything

that ought to be in such a code, as the rules of
each organisation will depend on its culture
and business requirements.

Codes should not have rules that infringe on

peoples’ rights.

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Some standard topics…

• Working hours and punctuality.

• Clothing to be worn.

• Examples of what amounts to misconduct.

• Behaviour outside office that affects the

image of the organisation.

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What is a grievance?
It is defined as:
• A cause or source of grief
• A ground of complaint
• A condition felt to be oppressive or wrongful
• Distress
• Burden
• Hardship
• Injury

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Addressing grievances
An organisation should have a written
procedure for employees to address their
grievances.

Merely saying ‘we have an open door policy’ or

‘there is an unwritten procedure’ is just not
good enough.

The written procedure must be given to all

employees.
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What should it contain?

• It should state to whom an employee should
make a complaint in the first instance
• Where he should go next if his grievance is not
resolved etc
• And ultimately state where the final point of
responsibility lies in resolving the grievance.

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PRELIMINARY INVESTIGATION
• Find out what happened as soon as an incident is
reported.

• Record statements from all involved. Statements

should be signed and dated.

• Refusal to make a statement is in itself a disciplinary

matter.

• Put all statements together and forward it to the HR

Dept. with a covering memo indicating your
impressions and what action you suggest.
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PRELIMINARY INVESTIGATION…

• You should help the HR Manager understand

the incident thoroughly from your point of
view. This will make decisions on the matter
easier for all.

• If the act is of a very serious nature and it is

felt that the presence of the employee would
impede investigations suspend him/her.

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PRELIMINARY INVESTIGATION…

• Suspension could be with/without pay.

• Suspend only in cases where there’s a serious

breach of discipline.

• Remember that the employee could have a

long paid holiday if the inquiry takes too long
or he/she is found not guilty.
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THE DOMESTIC INQUIRY

• “There are always two sides to a story”

• The law recognises this and thro’ the ‘audi

alteram partem’ rule requires both sides to be
heard. This is one of the principles of natural
justice.

• An inquiry is held to establish whether or not an

employee could be held responsible for the
charges framed against him/her.
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THE DOMESTIC INQUIRY…

• The fact that a domestic inquiry was held will
go a long way to establish the bona fides of an
employer.

• The charges should be drafted carefully. It is

best left to the experts. Usually, the HR Dept.

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THE DOMESTIC INQUIRY…

• Some companies follow a procedure where an

independent outsider is brought to conduct the
inquiry, while some others have the inquiry conducted
by a senior Executive/Manager.

• The HR Dept. ‘prosecutes.’ i .e., it leads all evidence to

prove the charges.

• The employee is given a chance to question all

witnesses to give him a chance to prove his side of the
‘story.’
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THE DOMESTIC INQUIRY…

• The employee can bring his witnesses and
documents too and make a statement.

• The inquiry will only establish whether or not

the charges have been proved. No inquiry will
recommend punishment.

• Decisions on the findings are the responsibility

of the Company.
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THE DOMESTIC INQUIRY…

• Do not let the process take too long.

• Finish the inquiry and take action as

expeditiously as possible.

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DECISIONS CONSEQUENT TO THE INQUIRY

• There are no hard and fast rules to determine

what ought to be done.

• However, what should guide you are:

a the seriousness of the charge/s.
b the impact the act/s had on the company.
c common sense and fairness.

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DECISIONS CONSEQUENT TO THE INQUIRY

• Remember, if the punishment is too harsh:

a the employee has a right of redress at the LD.

The LD would then take away your discretion to
determine the punishment.

b Employees will lose faith in the disciplinary

process.
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DECISIONS CONSEQUENT TO THE INQUIRY…

• TYPES OF PUNISHMENT

a Suspension

b Stoppage of increment

c Deferment of increment

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DECISIONS CONSEQUENT TO THE INQUIRY…

d Letter of Warning

e Demotion to previous grade

f Termination of services

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FINALLY…..

• In making a decision, on what punishment is

to be imposed, GOOD SENSE, and FAIRNESS
are the only guides.

• Too strict, and the company will be seen as

draconian.

• Too lenient and the company will not be able

to pursue its goals.
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Thank you!

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