Progressive Discipline in the Workplace

“To err is human to forgive divine” – Alexander Pope

Article by Ngoni Goba (Senior Labour Advisor)

Introduction

An intrinsic aspect of the human experience is the propensity to make mistakes. Depending on the circumstances and the potential harm suffered because of the mistake in question, employer’s first point of call would be to address the error, seek to correct it and ensure that it does not happen again. Progressive discipline is the practice of utilizing measures to correct a problem while affording the employee in question a reasonable opportunity to address a concern.

The Purpose of Progressive Discipline

In the case of Timothy v Nampak Corrugated Containers (Pty) Ltd (DA 22/08) [2010] ZALC 56 (17 March 2010) the Labour Appeal Court (LAC) held that “progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer’s organisation, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct.”

Our courts have endorsed the concept of corrective or progressive discipline, as enshrined by schedule 8 of the Labour Relations Act, 66 of 1995 (LRA). The case of Sidumo vs Rustenburg Platinum Mines Ltd [2007] 12 BLLR 1097 (CC) sets out the following guiding principles to consider in determining whether dismissal would be an appropriate sanction:

“(i) The importance of the rule that was breached; (ii) The harm caused by the employee’s conduct; (iii) Whether progressive discipline was applied and if not, whether progressive discipline may be effective; (iv) Whether additional training and instruction may result in the employee not repeating the misconduct; (v) The employee’s record and length of service; (vi) Whether the misconduct is serious and makes a continued employment relationship intolerable; (vii) Whether the employer has applied the sanction of dismissal consistently in the past and between employees who committed the same misconduct; (viii) The effect of the sanction on the employee; (ix) Reasons why the sanction is appropriate.” [Own emphasis]

This approach favours that the purpose of discipline, is a means for employees to know and understand what workplace standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings. Moreover, length of service, amongst other factors, may serve as guiding elements to encourage the application of progressive discipline, acknowledging that there may be room for the employee to correct his behaviour and comply with the rules and standards expected of him, if it is applied.

Conclusion

Given a situation where misconduct by an employee can be addressed and corrected, an employer should always endeavour to do so. Whether progressive discipline would be appropriate is heavily dependent on the circumstances of each particular case, paying close attention to the unique aspects arising from the facts.

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