Disciplinary Codes: law or not?

Opinion Piece by:

Karla Roux

One of the necessities when dealing with employee relations in a business is having a functioning and public disciplinary code that all employers and employees must adhere to. This is further enforced in the Labour Relations Act[1] that employers are obligated to adopt disciplinary rules in the workplace that establish the standard conduct required of their employees.

The disciplinary code can be said to regulate the compliance with the employees’ contract of employment. To ensure that all employees are aware of the different rules and regulations, the disciplinary code must be communicated to employees in writing and in understandable language by the employer. The employee must then take it upon themselves to ensure that they understand the regulations set out in the code and that they effectively comply therewith.

Because the disciplinary codes are required by businesses in terms of schedule 8 in section 3 of the LRA,[2] the ensurance that these codes are enforced can be deemed as law. This does not, however, indicate that the rules and regulations contained in these codes are by default, law. This is because each business is responsible for drafting their own personal Disciplinary Code which must be compliant with the LRA, but not taken directly from it. In the case of Mushi v Exxaro Coal (Pty) Ltd Grootgeluk Coal Mine,[3] an employee was dismissed on the ground of misconduct even though the disciplinary code stated that this action would receive a final written warning.

The CCMA found that it is in the discretion of the employer to dismiss the employee if they do not comply with the disciplinary code and that the specific deviation was in accordance with the best interest of the business and with fair and reasonable justification. The disciplinary code is therefore seen as a guideline in the application of discipline in the workplace and should not be enforced as an unyielding framework of rules and regulations. In the early case of Kammies v Golden Arrow Bus Services (Pty) Ltd[4] the court found that “whatever a disciplinary code might stipulate, common sense dictates that it would be manifestly unfair if in terms of such a code an employee were dismissed for a mere paltry offence. It would, however, be similarly unfair if in terms of such a code an employee could not be dismissed no matter how gross and blameworthy his offence.”

During the years, the courts have come to different conclusions when regarding the flexibility of disciplinary codes, making the notion that such rules be regarded as law in the business difficult to follow. The court found in the case of Leonard Dingler (Pty) Ltd v Ngwenya[5] that by applying the disciplinary code flexibly and to ensure that substantive justice is still achieved the rigid regulations of the disciplinary code could be discarded. Because of this, it is up to the discretion of the employers to ensure that the specifics of the code that they want to be adhered to is made evident tot the employees, and that such rules and regulations should be enforced as the law dictates: not arbitrarily, but fairly and reasonably. The disciplinary codes of businesses would therefore still not be recognised as law, but in the workplace it should be regarded as such.

Where the disciplinary code of a company has been integrated into their employment contracts, by signing it the employee would be contractually bound to all the rules and regulations set out in that code. The employer would therefore also be contractually bound to enforce such a code and to adhere to the procedures set out therein. In the case of Steven Motale v The Citizen 1978 (Pty) Ltd and Others LC,[6] where the employee was unfairly dismissed without being given the opportunity to go through the disciplinary code’s procedures, the court found that the employer had failed to comply with the contractual obligations by dismissing the employee without the mandatory disciplinary enquiries. The court further found that denying the employee these disciplinary procedures amounted to a breach of the employment contract and ordered the employee to be reinstated.

This case serves as the outcome of having the disciplinary code being integrated into the employment contract, subsequently making that code contractually binding by law. This is not, however, the recommended cause of action as having the disciplinary code as a separate policy would ensure that the disciplinary matters of the business be handled by the CCMA rather that the Labour Courts. This latter option would also ensure expeditious results as well as more control over the disciplinary process if alternative solutions are sought. Consequently, any disciplinary code in the form of a policy does not comply as law, but must be enforced in the company as stated in the employment contract. If the disciplinary code were to be included into the employment contract, such rules and regulations would be contractually binding on both the employer and employee and would then be regarded as law.

[1] Labour Relations Act 66 of 1995 (hereafter known as the LRA).

[2] The LRA.

[3] Mushi v Exxaro Coal (Pty) Ltd Grootgeluk Coal Mine JA 62 (2018) ZALAC 44.

[4] Kammies v Golden Arrow Bus Services (Pty) Ltd (1994) 15 ILJ 1113 IC.

[5] Leonard Dingler (Pty) Ltd v Ngwenya (1999) 20 ILJ 1171 (LAC).

[6] Steven Motale v The Citizen 1978 (Pty) Ltd and Others LC (2017) ZALCJHB 22.