Transcript DEPARTMENTAL PURPOSE & OBJECTIVES

EXERCISE 1
Introduction:
1.
Name and current position in WCED.
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2.
Describe your experience, if any, in dealing with discipline at your
institution.
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3.
What are your expectations of this specific
course?
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B
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D
E
DEPARTMENTAL PURPOSE
& OBJECTIVES
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Decentralise the function to
institution level as per
relevant legislation (PSCBC
Resolution 2/99)
Adequately equip managers
with knowledge of relevant
legislation and terminology
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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
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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
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.
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Witness
A witness is any person that can provide verbal information on
the fact in question.
5.
Documentary Evidence
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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
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.
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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
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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
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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.
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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
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
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
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.
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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
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Is an material issue of Fact or Law which must be
determined before the continuation of the proceedings.
15.
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EXERCISE 3
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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:
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to support constructive labour relations in the
public service;
to promote mutual respect between
employees and between employees and
employer;
to ensure that managers and employees
share a common understanding of
misconduct and discipline;
to promote acceptable conduct;
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to provide employees and the employer with
a quick
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and easy reference for the application of
discipline;
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to prevent arbitrary or discriminatory actions
by managers toward employees.
ROLEPLAYERS & FUNCTION
FUNCTIONS : WCED [DIRECTORATE : LABOUR RELATIONS]
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SERIOUS DISCIPLINARY TRANSGRESSIONS/MISCONDUCT
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[PSCBC RESOLUTION 2/99]
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DISCIPLINARY HEARING
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APPEALS
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INITIATOR [EMPLOYER REPRESENTATIVE
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PRESIDING OFFICER
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INVESTIGATION WHERE RELEVANT
CHIEF DIRECTOR : HUMAN RESOURCE MANAGEMENT
DISPUTES
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PS – GPSSBC
MANAGER / SUPERVISOR
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LEGISLATION
PSCBC RESOLUTION 2 OF 1999
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FUNCTIONS
q
q
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ACCOUNTABILITY
MANAGE DISCIPLINE AT WORKPLACE
ENSURE THAT CORRECT PROCEDURES ARE
FOLLOWED ACCORDING TO RELEVANT
LEGISLATION AND/OR COLLECTIVE
AGREEMENTS
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DISTINGUISH BETWEEN THE DIFFERENT
FUNCTIONS OF ROLEPLAYERS
TRADE UNIONS
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FUNCTIONS
REPRESENTATION OF MEMBERS
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ELECTED SHOPSTEWARDS TO REPRESENT
WORKERS IN THE WORKPLACE IN RESPECT OF
INDIVIDUAL DISCIPLINARY PROCEDURES
(COLLECTIVE AGREEMENTS)
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OBSERVERS
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ADVISORS
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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.
EXERCISE : 4
FRAMEWORK
EXERCISE:
A.
FIRSTLY BY YOURSELF AND THEN WITH
YOUR PARTNER, DISTINGUISH WHAT YOU
DEEM AS MANAGER/SUPERVISOR TO BE
CONSIDERED AS:
SERIOUS TRANSGRESSIONS [HEAD OFFICE]
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B.
LESS SERIOUS TRANSGRESSIONS [WORKPLACE LEVEL]
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C.
GREY AREAS
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PROGRESSIVE DISCIPLINE
PROCEDURE AS APPROVED BY HEAD OF EDUCATION
DISCIPLINARY PROCEDURES
WORKPLACE LEVEL PROCEDURES
(OR IMMEDIATE SUPERVISOR)
Managers (or immediate
superiors) may only issue up to a
final written warning – may not
suspend or dismiss
Formal disciplinary procedures
should only deal with cases where
a termination could result
FORMAL DISCIPLINARY
PROCEDURE (ABOVE WORKPLACE LEVEL)
EXAMPLE OF NOTICE
[NAME OF EMPLOYEE]
[PERSONAL DETAILS OF THE EMPLOYEE]
Title ____________________________________________
ALLEGED MISCONDUCT : YOURSELF
It has come to my attention that …. // I am aware that on _____
2002 you…
(describe nature of alleged misconduct)
In order to discuss the matter, you are required to attend a meeting
in room _______//my office on ____________ at
_______________. Please note that you have the right to
representation by your trade union representative or a fellow
employee.
Failure to attend the meeting could result in the matter having to be
determined by a formal disciplinary enquiry.
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SIGNATURE OF MANAGER
DATE:
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SIGNATURE OF EMPLOYEE
DATE:
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SIGNATURE OF WITNESS (IF APPLICABLE)
DATE:
SANCTIONS
PROGRESSIVE DISCIPLINE
APPROPRIATE SANCTIONS / CHOOSING THE APPROPRIATE PROCEDURE
THE SERIOUSNESS OF THE OFFENCE DETERMINES THE LEVEL OF ENTRY
COUNSELLING
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VERBAL WARNING
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WRITTEN WARNING
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FINAL WRITTEN WARNING
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NO ACTION
COUNSELLING SKILLS
(GUIDELINES)
Below please find a list that you consider necessary to have an
effective counselling session.
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Counselling is one step up in formality from informal advice and
correction
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Counselling would normally take place in a semi-formal venue such as
the supervisors office
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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.
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In counselling it may be that more than one person would be there on
behalf of the employer
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The employee should be advised of his/her right to have his/her trade
union representative present
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In the counselling session the employee should be told which standard he/she is
not attaining and/or which rule he/she is breaching
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It should be pointed out to the employee in what respect he/she is failing to attain
the standard
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The employee should be asked to identify obstacles as to why he/she cannot
attain the standard
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A formal programme of training and counselling should be developed to assist the
employee
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There may be one or a number of counselling sessions depending on the nature of
the offence
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An employee should be warned that if at an appropriate stage there is no
improvement in performance it could lead to further steps
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A record should be made and kept of the counselling session
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The employee should be encouraged and motivated to attain the standard
DISCIPLINARY CODE &
PROCEDURE
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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.
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1.1 When do you anticipate holding the disciplinary meeting?
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As soon as possible.
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1.2
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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.
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1.3 When do you think you will be in a position to determine a
sanction?
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At the meeting or soon as possibIe.
Can you include all the previous occasions on which the employee
came in late, not just yesterday’s incident?
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2.
Can you counsel an employee without convening a disciplinary
meeting?
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No. In terms of PSCBC Resolution 2 of 1999 corrective counselling is a
sanction.
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3.
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3.1
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Form A
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3.2
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Form B
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4.
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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.
What forms would you use for the following?
A written warning.
A final written warning.
Where would the supervisor record a verbal warning?
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5.
If you have issued a written warning how long does it
remain valid for?
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Six months.
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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?
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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.
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7.
Is it correct that an employee may not appeal in the less
formal disciplinary procedure? What procedure should be followed?
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No – the employee may appeal to the supervisor / manager’s superior.
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8. What kind of cases should be referred to the formal
disciplinary process?
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Cases of a serious nature.
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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?
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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.
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10.
Does the supervisor have authority
to suspend an employee?
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No. See the Disciplinary Code and
Procedures for Public Servants.
CASE STUDY 1
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Unauthorised absenteeism
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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
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Alcohol abuse
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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
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Theft
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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
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COVERED BY MEDICAL CERTIFICATE [19 – 21
MAY 2002]
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ABSENT [19 – 26 MAY 2002]
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PERIOD OF ABSENCE [8 DAYS]
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PERIOD OF ABSENCE NOT COVERED BY MEDICAL
CERTIFICATE [5 DAYS]
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DETERMINE THE SERIOUSNESS?
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PREVIOUS TRANSGRESSIONS
SIMILAR TRANSGRESSION – NEXT STEP
OTHER – ACTIVATE NEW PROCEDURE
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PROCEDURE TO BE FOLLOWED
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MEETING
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AUDI ALTERAM PARTEM
RIGHT TO BE REPRESENTED
DECISION
G
On what
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NG
Absent without permission and/or
Absent without reason
Not informing the office or institution
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q
q
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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
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OBSERVATION
MRS DELIGHTFULL
OTHERS
)
) Statements
EVALUATION AND APPROPRIATE ACTION
SEND HOME
ISOLATION
POSSIBILITY OF BLOOD TEST
(WITH CONSENT)
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PROCEDURE
NO MEETING
REFER
VERY SERIOUS TRANSGRESSION
BE PREPARED TO TESTIFY IN A
HEARING
CASE STUDY 3
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STATEMENTS OF WITNESSES
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PROCEDURE
NO MEETING
REFER
VERY SERIOUS TRANSGRESSION
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