Ch.6 – Discipline and dismissal for misconduct
Discipline in the workplace
Dismissal is the most sever penalty that an employer can impose against an employee guilty
of misconduct.
Employers often discipline employees and sometimes find themselves finding difficult factual
and legal issues.
In determining whether dismissal is appropriate in the circumstances of the case, the
employer may have to weigh up a number of factors to come to a decision.
The origin of the employer’s right to discipline
It’s generally accepted that the employer has the right to maintain and enforce discipline in
the workplace.
This right has its origin in the CL contract of employment
o It is an implied term in the contract of employment
This right is also linked to the employee’s duty to obey all lawful and reasonable instructions
o If the employer did not have the right to discipline an employee who does not comply
with its lawful and reasonable instructions, the right to give instructions would be
meaningless.
Originally the employer’s right to discipline was determined by the CL
Today it is also regulated to a certain degree by the
o LRA, and
o The Code of Good Practice: Dismissal
Discipline and the common law
Ito the CL the E may summarily dismiss (without notice) the e if the latter’s misconduct is
serious.
o The E may also dismiss the e by merely giving the required notice.
The E may not always want to dismiss the e that misbehaved.
o May prefer to impose a less severe penalty
The principles of the CL could not be ignored
o Any penalty imposed by the E had to be in compliance with CL principles
o The E actions could never amount to a BOC
E.g. unable to suspend the e without pay
Would have to suspend on full pay and give warnings
The effectiveness of this is questionable
In practice the E’s range of penalties was usually not limited to those that fell within the ambit
of the contract
o Superior bargaining power would ‘convince’ e to agree to a penalty which is BOC
1
, The Code and the employer’s right to discipline
Recognizes the E’s CL right to discipline e’s
Does this indirectly by requiring in item 3(1) that
o “all employers should adopt disciplinary rule which establish the standard of conduct
required by employees”
The E’s own disciplinary code must be measured against the provisions of the Code or, if it
has no disciplinary code, the Code will constitute the minimum guidelines for discipline in the
workplace.
The guidelines are set out in item 3 of the Code –
(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their
employees. The form and content of disciplinary rules will obviously vary according to the size and
nature of the employer’s business. In general, a larger business will require a more formal
approach to discipline. This requires that the standards of conduct are clear and made available to
employees in a manner that is easily understood. Some rules or standards may be so well
established and known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or progressive discipline. This approach
regards the purpose of discipline as a means for employers to know and understand what
standards are required of them. Efforts should be made to correct employees’ behaviour through a
system of graduated disciplinary measures such as counseling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met.
Informal advice and correction is the best and most effective way for an employer to deal with
minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves
may be graded according to degrees of severity. More serious infringements or repeated
misconduct may call for a final warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated offences.
The form and content of disciplinary codes of conduct.
The Code accepts that the form of the E’s disciplinary rules will vary according to the size and
the nature of the business.
It nevertheless requires that the E’s rules must be clear and made available to the e so that
there is certainty of what is expected, and what will not be tolerated.
Larger E’s usually have written a written disciplinary code and procedure.
o Sets out the procedure to be followed when the E takes disciplinary action.
o The E’s code may also set out the disciplinary sanctions for each type of disciplinary
infraction.
o Where …
On notice boards
In employers office for inspection
E-mail
o May also take the form of
A collective agreement between E and TU
Unilaterally imposed policy by E
Incorporated into e’s terms and conditions of employment
Smaller E’s often do not have written disciplinary codes
o E’s who do not have written disciplinary codes should inform the new e of these rules
o Must used a language which the e understands
The Code acknowledges that some rules of conduct may be so well established and known
that it is unnecessary for the E to communicate them to the e’s.
o The e who breaches such a rule can not argue that
the rule does not appear in the written disciplinary code, or
that the e was never informed of the rule.
2
Discipline in the workplace
Dismissal is the most sever penalty that an employer can impose against an employee guilty
of misconduct.
Employers often discipline employees and sometimes find themselves finding difficult factual
and legal issues.
In determining whether dismissal is appropriate in the circumstances of the case, the
employer may have to weigh up a number of factors to come to a decision.
The origin of the employer’s right to discipline
It’s generally accepted that the employer has the right to maintain and enforce discipline in
the workplace.
This right has its origin in the CL contract of employment
o It is an implied term in the contract of employment
This right is also linked to the employee’s duty to obey all lawful and reasonable instructions
o If the employer did not have the right to discipline an employee who does not comply
with its lawful and reasonable instructions, the right to give instructions would be
meaningless.
Originally the employer’s right to discipline was determined by the CL
Today it is also regulated to a certain degree by the
o LRA, and
o The Code of Good Practice: Dismissal
Discipline and the common law
Ito the CL the E may summarily dismiss (without notice) the e if the latter’s misconduct is
serious.
o The E may also dismiss the e by merely giving the required notice.
The E may not always want to dismiss the e that misbehaved.
o May prefer to impose a less severe penalty
The principles of the CL could not be ignored
o Any penalty imposed by the E had to be in compliance with CL principles
o The E actions could never amount to a BOC
E.g. unable to suspend the e without pay
Would have to suspend on full pay and give warnings
The effectiveness of this is questionable
In practice the E’s range of penalties was usually not limited to those that fell within the ambit
of the contract
o Superior bargaining power would ‘convince’ e to agree to a penalty which is BOC
1
, The Code and the employer’s right to discipline
Recognizes the E’s CL right to discipline e’s
Does this indirectly by requiring in item 3(1) that
o “all employers should adopt disciplinary rule which establish the standard of conduct
required by employees”
The E’s own disciplinary code must be measured against the provisions of the Code or, if it
has no disciplinary code, the Code will constitute the minimum guidelines for discipline in the
workplace.
The guidelines are set out in item 3 of the Code –
(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their
employees. The form and content of disciplinary rules will obviously vary according to the size and
nature of the employer’s business. In general, a larger business will require a more formal
approach to discipline. This requires that the standards of conduct are clear and made available to
employees in a manner that is easily understood. Some rules or standards may be so well
established and known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or progressive discipline. This approach
regards the purpose of discipline as a means for employers to know and understand what
standards are required of them. Efforts should be made to correct employees’ behaviour through a
system of graduated disciplinary measures such as counseling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met.
Informal advice and correction is the best and most effective way for an employer to deal with
minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves
may be graded according to degrees of severity. More serious infringements or repeated
misconduct may call for a final warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated offences.
The form and content of disciplinary codes of conduct.
The Code accepts that the form of the E’s disciplinary rules will vary according to the size and
the nature of the business.
It nevertheless requires that the E’s rules must be clear and made available to the e so that
there is certainty of what is expected, and what will not be tolerated.
Larger E’s usually have written a written disciplinary code and procedure.
o Sets out the procedure to be followed when the E takes disciplinary action.
o The E’s code may also set out the disciplinary sanctions for each type of disciplinary
infraction.
o Where …
On notice boards
In employers office for inspection
o May also take the form of
A collective agreement between E and TU
Unilaterally imposed policy by E
Incorporated into e’s terms and conditions of employment
Smaller E’s often do not have written disciplinary codes
o E’s who do not have written disciplinary codes should inform the new e of these rules
o Must used a language which the e understands
The Code acknowledges that some rules of conduct may be so well established and known
that it is unnecessary for the E to communicate them to the e’s.
o The e who breaches such a rule can not argue that
the rule does not appear in the written disciplinary code, or
that the e was never informed of the rule.
2
