One of the major obstacles to decriminalising workplace discipline according to Cliffe Dekker Hofmeyr is that existing disciplinary codes are based on a criminal justice model that has been entrenched into contracts of employment or collective agreements.
Long gone are the days when workplace discipline required formal disciplinary procedures that incorporated all the trimmings of a criminal trial.
An employee does not have a right to a formal enquiry (or hearing)
An employee is only entitled to an opportunity to state a case in response to allegations of misconduct. The opportunity given must still meet at least the two basic requirements of an employee’s right to be heard, namely, the provision of sufficient notice of the contemplated action and an opportunity to be heard.
An employee does not always have a right to an in-person (oral) enquiry (or hearing)
In circumstances where an employee’s misconduct is manifest, common cause, or not in dispute, a less formal process will suffice. In those circumstances an employer’s invitation to an employee to make representations (whether in writing or orally) is eminently reasonable and fair.
Even when an employer’s disciplinary code and procedure provides for a formal (oral) hearing, the Labour Court has accepted that the code merely represents guidelines and is not to be elevated to an immutable code which is to be applied rigidly regardless of the circumstances.
Overview
Employers are best advised to negotiate out of onerous contractual provisions and amend their disciplinary codes to embrace a more flexible model. Workplaces do not form part of the criminal justice system, boardrooms are not courtrooms, and employees are not presiding officers.
