Disciplinary Action

Disciplinary action is judged on how it was arrived at rather than on whether the conclusion was reasonable in the abstract. An employer that reached a sound decision by an unsound process is in a worse position than one that reached a debatable decision fairly.

Four things carry most of the weight. The allegation was put to the employee clearly enough for them to answer it. They had a genuine opportunity to respond, with enough notice and information to prepare. The evidence relied on was identified and considered, including anything favourable to them. And the reason for the decision was recorded at the time.

None of that is elaborate, and all of it is regularly omitted under time pressure. The omissions are invisible until the decision is questioned, at which point they are the whole of the argument.

For establishments within its scope, the procedure is not a matter of employer choice.

Section 28 of the Industrial Relations Code, 2020 applies the standing orders Chapter to every industrial establishment wherein three hundred or more workers are employed, or were employed on any day of the preceding twelve months. Where the Chapter applies, standing orders govern conditions of service including the disciplinary procedure for the matters they cover, and a handbook inconsistent with them does not displace them.

The backward-looking limb of that test catches employers out. An establishment that briefly exceeded three hundred workers on a single day of the preceding year is in scope, whatever its headcount today.

Below the threshold the Chapter does not apply and fairness obligations do not disappear with it. The absence of prescribed standing orders is not the absence of a duty to act reasonably.

• Establish the facts before deciding anything. An investigation whose conclusion was settled at the outset is visible in the record.
• Separate the roles. The investigator gathers, someone else decides, and where possible a third person hears any appeal.
• Put the allegation in writing, with the evidence, far enough ahead that a response is possible.
• Hold a meeting at which the employee can actually respond, and record what they said rather than only what was decided.
• Decide, state the reason, and set out the right of appeal.
• Hear the appeal properly if one is made. An appeal decided by the original decision-maker is not an appeal.

The separation of roles is the step small organisations skip, usually because there is nobody else. Where that is genuinely true, the answer is to be explicit about the constraint and scrupulous about the rest, not to pretend the separation happened.

Two questions decide whether an outcome survives scrutiny.

Consistency is the one raised first and the hardest to remedy afterwards. If two employees did materially the same thing and one was dismissed while the other was warned, the difference has to be explicable by something other than who their manager was.

That requires a central record of outcomes. Organisations that hold disciplinary decisions in individual files, or in the memory of whoever handled them, cannot answer the question, and the inability to answer it is itself damaging.

• Suspending as an automatic first step. Suspension is a neutral act in principle and is read as a conclusion in practice, so it needs a reason.
• Raising additional allegations at the meeting that the employee has had no chance to prepare for.
• Relying on evidence the employee has not seen, including anonymous complaints treated as established.
• Delay long enough that the employee reasonably thought the matter was closed.
• Deciding before the meeting and running it as a formality, which is usually apparent from the timing of the paperwork.

The last is worth dwelling on because it is common and self-inflicted. A dismissal letter drafted before the hearing, and dated the same day, tells its own story if the file is ever read by someone else.