Disciplinary Procedure

Where certified standing orders apply, they set out the misconducts and the procedure, and they govern. An internal policy that says something different does not displace them. Verify which establishments the standing orders provisions of the Industrial Relations Code, 2020 apply to, and read the certified text for the establishment before running any enquiry.

• A charge sheet that states a conclusion rather than an allegation. Gross insubordination is a finding; refusing a specific instruction from a named person on a named date is a charge.
• The same person investigating, presenting the case, conducting the enquiry and deciding the outcome. Each of those should not collapse into one.
• Denying the employee the opportunity to cross-examine the witnesses against them, or relying on statements from people who never appeared.
• Deciding before the enquiry. An email discussing the exit before the enquiry concludes is what the whole record will be read through afterwards.
• No record. An enquiry that took place but produced no proceedings, no attendance, no exhibits and no reasoned findings is difficult to distinguish from one that did not happen.
• Punishment disproportionate to the charge, particularly dismissal for a first instance of conduct that policy treats as warranting a warning.
• Extracting a resignation instead. A resignation obtained under threat of dismissal is frequently challenged as forced, and the organisation loses the protection a properly conducted enquiry would have given it.

• Suspension pending enquiry is a precaution, not a punishment. It is used where the employee's presence would prejudice the enquiry or where the allegation makes continued presence untenable.
• A subsistence allowance is ordinarily payable during suspension, at a prescribed rate that may increase if the enquiry is prolonged. The rate, and whether it steps up as the enquiry runs on, come from the certified standing orders and the applicable legislation, and both need checking there rather than being assumed.
• Suspension has to end. A suspension left running for months without an enquiry proceeding becomes the punishment, and it is treated as such.
• On exoneration, the period is usually treated as duty with consequential effect on wages, and that has to be settled rather than left ambiguous.
• Where the allegation involves criminal conduct, a police complaint and an internal enquiry can run in parallel, and the internal enquiry does not have to wait for the criminal case to conclude, though the interaction needs advice in serious matters.
• Where the allegation is sexual harassment, the disciplinary procedure does not apply in place of the statutory mechanism. The internal committee inquires under its own procedure, and the disciplinary authority acts on its recommendation.

• Date everything and keep it contemporaneous. A file assembled after the decision reads as one, and that is usually visible.
• Serve documents properly and record how. Refusal to accept a charge sheet is dealt with by recorded service, not by abandoning the step.
• Keep the enquiry proceedings, including who attended, what was said, and what documents were exhibited.
• Write reasons. A finding without reasoning cannot be defended, and the reasoning is what shows the explanation was considered.
• Apply the procedure consistently. Two employees treated differently for similar conduct is the most common basis on which an action is challenged, and inconsistency between locations is where it usually arises.
• Settle the dues correctly. Even where dismissal follows misconduct, the entitlements payable have to be computed and paid on their own basis, and withholding them as a lever creates a second dispute.

Four things should be settled from the source before any disciplinary matter is concluded: the standing orders position, the procedural requirements attaching to termination under the Industrial Relations Code, 2020, the subsistence allowance rate, and the effect on gratuity where dismissal follows specified misconduct under the Code on Social Security, 2020.