Workplace discipline in the public education sector
- Authors: Loliwe, Fezeka Sister
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
- Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
- Full Text:
- Date Issued: 2014
Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013