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- Often employers are tempted to impose a fine when an employee commits an act of misconduct. This is an extremely popular misconception.
- Employers are allowed by law to enforce and maintain discipline in the workplace through the introduction of workplace rules, policies and procedures.
- Employers are entitled to take disciplinary action in the workplace to enforce those workplace rules.
- It is essential for employers to understand that disciplinary processes must align with labour law principles.
- Instead of fines, employers should implement and apply fair and lawful disciplinary measures that promote accountability.
Unlike in the criminal justice system where a traffic officer can issue a motorist a fine for failing to obey the rules of the road, employers may not levy fines against employees who fail to obey rules in the workplace.
Often employers are tempted to impose a fine when an employee commits an act of misconduct. This is an extremely popular misconception that many employers wrongly believe is correct. However, employers must note that in South Africa this type of action is strictly prohibited and unlawful under labour law.
While the temptation to impose fines may stem from a desire for swift discipline, such practices are not only unlawful but can also expose the employer to significant legal risk.
Clause 7(3) of the sectoral determination for agriculture, Sectoral Determination 13 (SD 13), issued by the minister of employment and labour under the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), as amended, expressly states: “An employer may not levy a fine against a farmworker”.
The employer’s options
What are the employer’s options to enforce workplace rules and maintain order, if they cannot fine their employees? Employers are allowed by law to enforce and maintain discipline in the workplace through the introduction of workplace rules, policies and procedures, as long as the content and application thereof complies with the law, is fair and reasonable, well communicated to their employees and enforced consistently in the workplace.
Employers are entitled to take disciplinary action in the workplace to enforce those workplace rules, provided that such disciplinary actions are fair and lawful. The employer may proceed with:
- Consultation or counselling sessions to address the employee’s conduct that does not comply with the employer’s rules in instances where the misconduct is not of a serious nature.
- Issuing written warnings where the employee is once again informed in writing of the workplace rule or procedure that has been breached and that should the specific misconduct be repeated within a specific timeframe, more serious disciplinary action may be taken.
- A disciplinary hearing if progressive discipline was applied, or if the misconduct was serious enough to warrant a dismissal.
Absent without permission
Also note that where an employee is absent without permission, and there is no justifiable reason for the absence (for example sick leave), the employer may take disciplinary action and apply the ‘no work, no pay’ principle. This absence is not regarded as unpaid leave. It should only be referred to as leave if the leave was granted with prior permission.
This comes from the common law duty of an employee to render services to the employer, and in return the employer’s common law duty is to pay the employee’s wages. This duty along with further rights, duties and obligations should be set out in the employment contract.
Accordingly, it also makes sense that the employer is entitled to refuse to pay an employee if the employee refuses to come to work and render the agreed services. Similarly, the employee would also be entitled to refuse to work if the employer refuses to pay the employee’s wages.
Fair and lawful measures
While the temptation to impose fines may stem from a desire for swift discipline, such practices are not only unlawful but can also expose the employer to significant legal risk. It is essential for employers to understand that disciplinary processes must align with labour law principles.
Instead of fines, employers should implement and consistently apply fair and lawful disciplinary measures that promote accountability in the workplace. These principles and guidelines ensure that workplace discipline is fair, consistent, and aimed at correcting behaviour rather than punishing employees. This approach fosters a positive work environment, enhances productivity, and upholds the trust relationship between employers and employees. – Anneline Scriven, senior legal advisor, LWO Employers Organisation
The LWO Employers Organisation assists employers to comply with labour law, and to use it to their advantage to protect their business. As a registered employers’ organisation with the Department of Employment and Labour, the LWO has the right to represent members at the Commission for Conciliation, Mediation and Arbitration (CCMA). Take note that this article is not legal advice – consult one of our legal advisors about any specific legal problem or matter. For more information, send an email to Anneline Scriven at anneline@lwo.co.za or info@lwo.co.za, or visit www.lwo.co.za.
