Section 1 Disciplinary Conduct

section 10 of the Prevention and Combating of Corrupt Activities Act 12 of 2004

"(a) who is a party to an employment relationship and who, directly or indirectly, accepts or agrees or offers to accept from any other person any unauthorized gratification, whether for the benefit of that person or for the benefit of another person; or (b)who, directly or indirectly, gives or agrees or offers to give to any person who isa party to an employment relationship any unauthorized gratification, whetherfor the benefit of that party of for the benefit of another person, in respect of that party doing any act in relation to the exercise, carrying out or performance of that party's powers, duties or functions within the scope of that party's employment relationship, is guilty of an offence of receiving or offering an unauthorized gratification."

Paragraphs 3 (2) of Schedule 8 to the LRA

"Efforts should be made to correct the employees' behaviour through a system of graduated disciplinary measures such as counsellings and warnings"

Paragraphs 3 (3) of Schedule 8 to the LRA

"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 cost effective way for an employer to deal with minor violations of work discipline"

Racism is defined on the website of the Anti-Defamation League as

"... the belief that a particular race is superior or inferior to another ..." (ADL 2002).

Schedule 8 of the LRA

- the Code of Good Practice Dismissals -provides for matters relating to the handling of disciplinary misconduct and dismissal in the work place

WHAT IS RACISM Nittle (2014a)

= "racism is discrimination or prejudice based on race". = "The belief that race accounts for differences in human character or ability and that a particular race is superior to others".

The primary difference between investigations undertaken by the SAPS and those undertaken outside of the SAPS,

= SAPS MUST investigate each and every reported incident of crime, whether it is considered petty (the theft of an apple) or serious (the theft of a large amount of money). = Within a company or an organisation, an investigation may only be done based on a mandate or a letter of intent.

PROCUREMENT POLICY TO AVOID NEPOTISM

= Scope = who does the apply to? policy is applicable to all staff members =Definition= Nepotism is the unfair favouring of relatives and household members. who are relatives/household members.? Purchaser refers to any staff member who acquires goods and/or services for the organization. =Mutual Service Relationship Staff members may neither directly nor indirectly be involved in the initiation/participation in decisions about conditions of service, in respect of relatives or household members. Staff members may not be employed in positions where a relative or household member takes decisions in the normal course of business Staff members may not be employed in positions where they are exposed to the close supervisory authority of a relative or household member. In cases where other personal relationships are of such a nature that objective and accountable supervisory decision-making is impossible, the Chief Director: Human Resources must be consulted =Supervisors and Promoters: unavoidable that a staff member acts as supervisor, provision must be made for an unrelated supervisor, co-supervisor, promoter or co-promoter for the student. =Purchase of Goods and/or Services:Before a purchase transaction takes place in respect of goods and/or services where relatives or household members are involved as suppliers, the purchaser or transaction decision maker must declare the relevant personal association to his/her area head. declared the relevant personal association to his/her area head, the purchase transaction must be handled by an unrelated staff member. =Other situations: situations arise, the principles arising from the previous paragraphs ought to form the basis of the policy and be applied equally. =Exceptions: Exceptions to the stipulations of the policy require a written recommendation from the area head. The final decision on this recommendation rests with: The Chief Director: Human Resources where it concerns mutual employment relations; The appropriate academic body where it concerns academic matters; The Chief Director: Finances and Services where it concerns the purchase of goods and/or services.

ABUSE OF COMPANY PROPERTY

= a very serious issue that can lead to dismissal on first conviction. There is a fundamental duty on an employee to further the interests of the company that has employed him/her. = malicious damage to company property or assets is regarded as being a breach of trust. The sabotage, disregard for regulations, poor maintenance, wastage and the unauthorised use of machinery or vehicles are all examples of misconduct

unauthorised borrowing of the property of another

= any person who removes any property from the control of another or the person in charge, without that person's consent, and uses it for his/her own purposes, is guilty of an offence = If the consent was obtained fraudulently, this could be an alternative charge. = Unauthorised borrowing is punishable in terms of the provisions of section 1(1) of the General Law Amendment Act 50 of 1956.

consider a charge of fraud as an alternative to a charge of corruption

= corruption always goes hand in hand with some form of misrepresentation, = witnesses are hard to find, the reason being that the Prevention and Combating of Corrupt Activities Act 12 of 2004 requires that both parties to a corrupt transaction be culpable. = look for a misrepresentation; it is usually made verbally, in writing or by acting in a particular manner, for instance shrugging shoulders in a dismissive way when asked a direct question = Note that Section 269A of the Criminal Procedure Act 51 of 1977 makes provision for certain competent verdicts on a charge of corruption (Theft; Fraud or Extortion).

whether the incident you are investigating amounts to misconduct or not.

= employee is always to blame for the misconduct = conduct of the employee or the failure of the employee to do something.He/she has for example either broken a rule, regulation, policy, procedure or standard of behaviour required at the workplace. = rule, regulation, policy, procedure or standard of behaviour required was in place before the employee transgressed and the employee knew or could reasonably have been expected to know about it. = rule, regulation, policy, procedure or standard of behaviour was consistently applied by the employer.

Nepotism has a negative impact on the workforce

= first being that people will complain and they will not be productive, = the second that good workers will leave for better prospects outside the company = potential to stunt the growth of a business = erodes the leadership skills of the company and may leave the company open to labour disputes = practice may also lead to high levels of stress, as the unfairly appointed person is now under scrutiny for signs of incompetence and inadequacy

Substantive fairness

= has to do with the reason why disciplinary action is taken against an employee = ensure that the reason for instituting disciplinary action is fair, that is, there must be a valid reason for instituting disciplinary action, namely because the employee is allegedly guilty of misconduct. = referred to as the concept of legality, which means that a person can be convicted and punished only for conduct that was clearly designated as an offence according to a law (or disciplinary regulation) that existed at the time the conduct was committed. Furthermore, the person must be aware that what he/she did was contrary to the disciplinary code.

A valuable point to bear in mind is to establish how the employee came to be in possession of company property

= if false misrepresentation, either verbally or in writing, to the person in charge of the property to be able to get possession of it. In such circumstances, you have a clear example of fraud = If no misrepresentation was made and the person merely abused his/her authority, it may be a disciplinary transgression

Procedural fairness

= procedure followed by the employer to investigate the employee and to institute departmental proceedings is fair. = to hear the other party's side = referred to as the audi alteram partem rule = there might be a valid reason for the actions of the employee, hearing the other side will prevent a loss of both time and valuable resources

Labour relations in the South African environment are regulated by

= the Labour Relations Act (LRA 66 of 1995), = along with the number of amendments to this Act since its inception in 1995.

An example of substantive unfairness

= where a person is dismissed for doing something for which another employee was merely fined or given a warning. = where an employee is dismissed for doing something for which there is no provision for dismissal.

procedural unfairness

=where an employee is dismissed while being unaware of the nature of the offence, = where the employee was not given sufficient prior notification of the disciplinary hearing to prepare his/her case.

DIFFERENT FORMS OF TRIBUNALS

CRIMINAL CIVIL DEPARTMENTAL

THE INVESTIGATION OF MISCONDUCT

Gathering evidence = formal complaint; preferably in writing. = what type of misconduct has been alleged = In a disciplinary hearing, the standard of proof is "on a balance of probability". = integrity of the evidence. Obtaining statements = statements are drafted in clear language, with which the person making the statement (deponent) is most comfortable.

when you are tasked to investigate misconduct there are several questions you should ask yourself:

Has a specific rule or standard been broken? If this is so, is the rule or standard both lawful and attainable? If this is so, was the person who transgressed aware of the rule or standard? OR could this person reasonably be expected to have been aware of it? Has the company applied this rule or standard consistently? (Misconduct [sa]).

DEFINITIONS OF NEPOTISM Businessdictionary

Practice of appointing relatives and friends in one's organization to positions for which outsiders might be better qualified

Absenteeism may manifest in the following ways:

absence without leave late arrival for work early departure from work extended tea/lunch time poor timekeeping absence from the workstation during working hours desertion

(MIS)USE OF COMPANY PROPERTY

Some form of personal use of company property should be permissible. However, it is very important that whatever is allowed, is relevant to all employees. = rules must be applicable to all staff and must be consistently and vigilantly enforced to

damage to property, which is also referred to as "malicious injury to property"

is defined by Joubert (2013:174) as "the unlawful and intentional damage to property belonging to another person or damage to one's own insured property with the intention to claim the value of the damage from the insurer".

THE FIVE QUESTION RULE

What have I got? What do I need? Where do I get it? How do I get it? What do I do with it?

At such a disciplinary hearing the following persons may be present:

a chairperson a representative from management the employee a representative of the employee any witness(es) for either party an interpreter if so required (Disciplinary procedures [sa]).

standard disciplinary code should provide

a number of sanctions that range from a verbal warning, a written warning, a final written warning, to dismissal. It is not necessary for the employer to follow each of these steps however, as some disciplinary transgressions may be so serious that dismissal is warranted for a first offence

following forms of misconduct should be considered VERY serious misconduct:

absent without leave for a short period reporting late for duty leaving the premises without authorisation unauthorised possession of the property of the employer or somebody else use of liquor or narcotic drugs while on duty or being drunk on duty intimidation, incitement or participating in a strike in contravention of the LRA insubordination or disobedience failure to carry out a standing instruction violence; threatened or actual fraud or forgery of any document or information gross negligence possession and/or use of drugs deliberately damaging the property of the employer corruption, theft, fraud, and attempts as well as making confidential informationknown absence from work without leave for a period longer than five days conviction of a criminal offence and imprisonment without the option of a fine when private or confidential information is made known to another person/s(third party) without the permission of the employer viewing pornographic or offensive or discriminatory material whether in printedor electronic format, or being in possession of pornographic material the destruction or deletion of computer data without the permission of theemployer (Scheepers [sa])

Examples of transgressions so serious that dismissal is warranted for a first offence.

assault, fraud, intimidation, sexual harassment, theft, unauthorised possession of company property, abuse or misuse of company property, or damage to company property

POLICY MATTERS

dealing with a disciplinary matter, the guiding principles contained within the policy of the company at which the alleged infringement took place is fundamental to the success or failure of an investigation. The policy you develop is also dependent on the type of organisation it is written for

unintended consequences when staff use company property for their own purposes:

equipment may break which will inevitably raise the question: who isresponsible to pay for the repair? when staff use company equipment for their own purposes, there is a loss ofproductivity, since the person should be doing his/her work and not personalthings wear and tear on the equipment, which has a financial impact on themaintenance and eventual premature replacement of the equipment staff who witness this use may grow disgruntled because they view thepersonal use as abuse and expect management to act electronic equipment may pick up viruses or store undesirable web content onthe server, which could infect the entire network of the company staff who use a branded company vehicle for their own purposes or who use itirresponsibly and who perhaps park in a no-parking zone cause damage tothe reputation of the company (Bizfilings toolkit 2014a)

cronyism

favouritism to friends

nepotism

favouritism to relatives

dismissal of an employee will only be upheld by the CCMA, Bargaining Council or the Labour Court if the employer can prove:

he/she followed stringent, complex and time consuming disciplinary proceduresin compliance with labour law the employer can prove on a balance of probability that it had the right to dismiss the employee in light of the facts of the case (Israelstram [sa])

COMPANY PROPERTY

includes property and resources such as tangible and intangible assets. Tangible assets are things like stationery, equipment, materials, vehicles, computers and money. Intangible assets, on the other hand, are things like company information, intellectual property, the reputation of the brand, as well as the time of an employee

Absenteeism

is closely associated with poor timekeeping and incapacity to do work due to some medical condition

principle of legality

is derived from the Latin term nullum crimen sine lege which means that there can be no crime without a prescribed punishment. This means that people can only be convicted and punished for offences that are found in law (either common law or statutory law)

Insubordination

is the "refusal to obey a lawful and reasonable order"

ultimate aim of discipline in a work environment

is to make sure that the conduct and behaviour of employees are in line with that required for the effective and efficient functioning of an organisation

OTHER FORMS OF DISCRIMINATION

marital status age language ethnicity gender sexual orientation disability religion

Overt displays of favouritism

may occur when a close relative is hired because of kinship

covert displays of favouritism

may occur when preferred resources are allocated to those projects in which the leader's relative is involved.

civil matters , standard of proof

need only prove that the plaintiff's version is more likely to be true than the version presented by the defendant. This is referred to as a balance of probabilities. also the requirement in disciplinary matters.

general definition of corruption, as set out in section 3 of the Prevention and Combating of Corrupt Activities Act 12 of 2004

refers to "directly or indirectly" accepting or offering a benefit to another person to act in a biased way that amounts to an abuse of a position of authority

BURDEN/ONUS OF PROOF

refers to the side that must prove their case/claim in order to succeed. As a general rule, it is the aggrieved party that must prove their case. If they fail to do so, there is no case for the other party to answer. There is a saying "he who alleges must prove"

Standard of proof

refers to the strength or the amount of evidence that you must bring in a case to secure a conviction or a positive result, in other words, win the case

The following conduct should be considered as serious misconduct:

sleeping when on duty failing to report when areas, structures or implements are unsafe failing to use tools or implements according to the standard procedures extended absence the use of language that is insulting and indecent collecting donations or conducting business on the premises of the employer without authorisation (such as selling Tupperware or similar products) failure to report overtime worked without a valid reason (irrespective of an undertaking to work overtime or not) providing service which is inadequate or poor irreconcilable differences when other people are injured at work as a result of rough play or negligence during office hours littering wilfully giving false information a first offence of absenteeism during the probationary period, namely the first 6months of service

At such a DISCIPLINARY hearing, the following usually happens:

the employer leads the evidence the employee is given an opportunity to respond the chairperson asks questions of the witnesses to clarify any uncertainties at the conclusion the chairperson decides whether the employee is guilty or notguilty if the chairperson finds the employee guilty, he/she may ask both parties tosuggest the appropriate disciplinary steps the chairperson takes these suggestions into consideration but the finaldecision about which disciplinary sanction to impose rests with the chairperson the employee is informed of the disciplinary sanction the employee is informed of the right to appeal if there is no appeal procedure in place, the employee must be informed of theright to approach the CCMA or Bargaining Council (Disciplinary procedures[sa]).

WHAT IS RACISM Oxford Dictionaries (2014)

the word "racism" is a noun which means "The belief that all members of each race possess characteristics, abilities, or qualities specific to that race, especially so as to distinguish it as inferior or superior to another race or races". Synonyms of the word "racism" are racial discrimination, bigotry, intolerance and, within a South African context, the term is apartheid.

origin of the word "nepotism" acc to Waskey

the word is derived from the Latin term nepos which means either grandchild or nephew. According to Waskey the practice of giving preferential treatment to nephews occurred in the late Middle Ages. The practice of giving preferential treatment to nephews and appointing them in the ecclesiastical positions happened because the popes and bishops of that time had taken a vow of chastity. This meant that they did not have children of their own and therefore appointing a nephew was akin to having the son you never had

origin of the word "nepotism" acc to Muchinsky

traced as far back as the 1600s. Its origin is said to reside in the papacy where newly elected popes would appoint family members, more especially their nephews, thus surrounding themselves with kinsmen who would remain loyal. The name "nepo" means "nephew" in Italian. The "ism" part of the word is used to define "a distinctive doctrine, theory, system or practice". This results in the word nepotism

DEFINITIONS OF NEPOTISM Mhatre, Riggio and Riggio

unfair display of favouritism by a leadership source (i.e. an individual leader, a group, or an organisation) that are based on kinship". They explain that these displays of favour can manifest overtly or covertly.

criminal matters , standard of proof

you have to provide evidence of the person's guilt beyond reasonable doubt, meaning that the court can make no other finding than guilty, based on the evidence. If there is reasonable doubt, the accused will get the benefit and will be found not guilty. the concept 'beyond reasonable doubt' always has a constant value in all cases. The seriousness of the offence therefore has no influence on this standard".

DEPARTMENTAL "TRIBUNALS"

•Action results from a disciplinary transgression which is in contravention of a company policy •These matters are governed by the Labour Relations Act •Investigation usually done by an in-house investigator •Investigator presents the findings in the form of an Investigative Report •The standard of proof is on a balance of probabilties •Management makes a decision about further action

CIVIL "TRIBUNALS"

•Civil action is instituted by aggrieved party (the plaintiff) against the defendant •Civil cases are very expensive and take a long time •Require the presence of a lawyer •May make use of an investigator to gather evidence for the trial •Standard of proof is on a balance of probabilities

CRIMINAL "TRIBUNALS"

•Criminal offences based on SA law •Standard of proof - beyond reasonable doubt •Investigations undertaken primarily by SAPS - in some companies by in-house investigators •The State is the one instituting prosecution against the Accused