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  • Writer's pictureJoy Beckett

What managers need to know when dealing with potential disciplinary offences

Setting your team up for success: What managers need to know when dealing with potential disciplinary offences.

Dealing with difficult or uncooperative employees can be easy if you follow the road and intentions paved by the labour laws. So while it may not be the process of dealing with the situation that’s difficult, ERX has found that many managers find it difficult to effectively manage under-performers and uncooperative team members – in a manner that aligns with the standards of the law.

Since not everyone is a labour law expert, here are some pointers on what to keep in mind when dealing with an employee that gives you grey hair:

Create a safe space for constructive dialogue

It’s not a new phenomenon for employers to find themselves at loggerheads with employees. On the one hand, office politics can quickly escalate into employees being branded as disruptive or degenerate. On the other hand, some employees also experience their employers as inconsistent and unreasonable.

Common workplace problems revolve around issues such as insubordination (being rude or refusing to do what was instructed), insolence, and/or the apparent inability or incapability (incapacity) of an employee to perform their duties (either because they are ill or don’t have the required skills).

At ERX, we find that employers and employees fail to engage in constructive dialogue to actively solve these dilemmas. As a result of the tensions, an employment relationship that is not conducive to high-performing work may prevail.

Educate yourself on employee relations

Another common problem is that management (executives, supervisors, and owners) is ill-equipped to handle the employee relations function. They then outsource this important function – which can alienate employees (as outsiders do not always have their finger on the pulse or are unable to adapt to the company’s organisational culture). Failure to deal with the issue as a manager leads to employees disrespecting you and increasing the problems.

We often find that supervisors are unable to confidently handle and/or maintain discipline due to a lack of understanding (whether of the rules or the procedures). This is mostly due to a lack of knowledge, so they may abuse the disciplinary process to fast track and/or facilitate their own agendas, feeding their egos and/or exercising their power. This can further magnify conflict in the workplace.

Basic people-skills are the key to a good working relationship. The tone of voice could make or break a situation. Be conscious of your tone of voice when conversing with or reprimanding your employee, as it could lead to a breakdown of communication and trust.

Practice dispassion and revert back to the letter of the law

In order to mend fractious relationships, it is extremely important for parties to be objective. To do this, a manager needs to apply the workplace rules to the situation dispassionately, ensuring compliance with the country’s employment laws.

For example, in a situation where an employee is alleged to have been insubordinate or insolent, managers should ask themselves the following:

  • Was the instruction within the scope of the employee’s work?

  • Was there a failure or refusal to follow the direct instruction?

  • Was the instruction given reasonable? Was it lawful?

  • Did the employee’s response or behaviour amount to a challenge of authority or was the employee's behaviour rude?

  • Does the very same behaviour amount to a challenge of the employer’s authority?

If the answer to these questions is "yes," then maybe you should consider embarking on a disciplinary process.

But if the answer is "no," you need to consider the true reason behind the alleged action. This does not necessarily mean you have a formal hearing, but the actions you take need to be determined by the events. Often, managers are too quick to jump to charging employees with offences when retraining of required standards, a reprimand, or a discussion would suffice. (In evaluating this, refer to the Code of Good Practice in the LRA.)

Evaluate the likelihood of the success that your action will have and the need for an ongoing relationship

If you, as management, are unwilling to risk continued employment, remember that a risk assessment regarding the dismissal should be conducted:

  • Is there a need for this relationship to continue?

  • What about trust – can you still trust this employee, not to repeat this offence or be guilty of a far worse transgression?

  • Can or is this employee willing to reform?

  • What would the economic repercussions for the company be in the event of a reoccurrence of breaking the rules, vs parting with the employee now?

Remember your duties as a manager

As a manager, your role in the disciplinary process can be challenging to pin down. Managers often struggle with the idea that their true function is to protect the enterprise and not punish employees. What this simply means is that, as a manager, your duties are to ensure the maintenance of reasonable standards of conduct and performance in the workplace.

It is very important to keep the following in mind when considering reprimanding employees:

Standards of behaviour are the same for all employees within your company.

  • Dismissal related to (mis)conduct should be a sensible operational response to risk management and be rooted in operational requirements rather than in the need for punishment, an expression of moral outrage or an act of vengeance.

  • Managers should only take action against employees who have been shown to have broken legitimate rules, keeping the risk of a repeated offence in mind.

  • Employees should only be dismissed if, despite the prima facie impression of reliability arising from long service, it appears that, in all the circumstances, particularly the required degree of trust and the employee’s lack of commitment to reform, continued employment will be operationally too risky.

  • Mitigation is important when considering an employee. Taking account of them as a person, their hardships, future and past.

  • Always ensure dismissal is as a result of conduct and/or capability that can be proven so as to ensure risk mitigation in line with the operational requirements of the enterprise.

A company’s staff are one of its biggest assets, especially when they are performing well and working in harmony. When there is disagreement or a lack of performance, it can be tricky for managers to set their staff up for success. Facilitating difficult conversations effectively and remaining emotionally detached from the situation is very important to ensure a fair and positive outcome.

If you keep the above pointers in mind during such a sticky situation, your actions are more likely to be aligned with the Labour Law of South Africa.

"Managers do not have the right to take any action that amounts to ‘punishment, an expression of moral outrage, or an act of vengeance’" – Judge Johan Conradie, Pre-dismissal inquiry: Reviewing LRA s188A rulings.

Please share your thoughts and experiences with us and feel free to raise questions or uncertainties regarding dealing with potential disciplining of employees.

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