The Correct Approach to the Disciplinary Process- Employer’s Perspective

Are you part of a team responsible for the enforcement of your company’s disciplinary process? This process is often quite complex, especially given not only the legal considerations, but also the nuanced nature of the employment relationship.

With the above in mind, here are a few key considerations:-

1. Does the company have specific policies in place that regulate the issue which is the subject of the disciplinary process being initiated? If so, was the employee made aware of this policy or in other words, does the policy form part of that employee’s terms and conditions of employment? 
2. Once you are clear on the above, ensure that there is a comprehensive investigation done by an independent person and request an investigation report. This investigation will often include meetings with the relevant employee. The meetings should be documented.
3. It may or may not be, given the nature of the alleged infraction and the related policy, necessary to place the employee on paid leave, although this is often recommended, in most situations.
4. If, based on the report, you are satisfied the employee has a case to answer, prepare and issue a clearly worded letter of charge/notice of hearing setting out at minimum:
   • the nature of the charges;
   • the policy to which the charges apply;
   • a proposed date and time for a disciplinary hearing;
   • a clear statement regarding the employee’s right to have a representative present; and,
   • a list of all the documents on which the company intends to rely at the hearing.
5. All the documents listed, should be annexed to the letter/notice.
6. The employee should be afforded sufficient time between the date of receipt of the letter/notice and the proposed date of the hearing.
7. The panel should comprise independent person (s).
8. Although most managers under whose portfolio this process falls are generally knowledgeable on employment laws, the specific laws should always be consulted, and the company guided accordingly.
9. At all times, bear in mind that the disciplinary process including the hearing, is a fact-finding mission and a genuine step by the company to resolve the matter and not a formality to secure a pre-determined result.

These pointers are only a summary of the critical considerations, which from this writer’s experience, are important to consider in protecting both the manager and the company’s interests.

NOTICE

The above does not constitute legal advice. LMC highly recommends that you engage an experienced employment law professional to advice and support you throughout the process.

About the Author:

Nickardo is an Employment and Industrial Relations Specialist with vast experience in contentious and non-contentious employment law solutions.

You may book a consultation with him by sending your request to info@lawsonmariechambers.com OR contact him by phone at 876-690-2402. He’d be happy to speak with you on these issues or generally, on other legal matters.

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