Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
In order to optomise the corrective effect of discipline it needs to be implemented as swiftly as possible.
This does not mean that the disciplinary process must be carried out hastily. It does mean that, psychologically and legally, unnecessary delays must be avoided.
Psychologically, the closer in time the corrective action/discipline is to the time the misconduct was perpetrated, the more effective the corrective action is likely to be.
This is because:
- The time proximity creates a direct and clear connection between the misconduct and the discipline in the mind of the transgressor
- This in turn assists the employee in learning that misconduct will result in a negative consequence.
From a legal point of view, discipline that is unnecessarily delayed can be found to be faulty.
That is, an unnecessary delay in bringing charges can result in the belief that:
- the misconduct was not serious enough to merit discipline
- procedural time frames have been overstepped
- the discipline was not truly instituted due to the alleged misconduct but rather due to the existence of a hidden agenda and the actual charge was a mere pretext.
In Duiker Mining LTD vs CCMA and others (2003, 6 BLLR 550) the Labour Court agreed that bringing of disciplinary charges should not be delayed unnecessarily.
In Riekert vs CCMA and others (2006, 4 BLLR 353) the Court found that the dismissal was unfair as the employer had unnecessarily delayed the laying of charges against the employee.
Thus, the employer should:
- Begin and complete the investigation into the alleged misconduct without unnecessary delay.
- The investigator must, on the one hand, turn over every stone in discovering the facts of the case but, on the other hand, must find ways of effectively managing the time spent on the investigation. This should result in a large number of facts being discovered in as short a time as possible.
- Where merited formulate the charges without delay and notify the employee thereof.
Notwithstanding the above, a delay in holding the hearing is required so as to give the employee time to understand the charges and to apply his/her mind to a defense.
Where employers do not have internal officials able to manage this process they are advised to outsource this task to an external expert. Also, expert training of officials in the skills required to investigate and bring charges can go a long way towards avoiding procedural flaws that can invalidate the disciplinary process.