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Disciplinary procedures for PASS staff, including scientific and technical staff

Disciplinary procedures for PASS staff, including scientific and technical staff

General | Principles | Informal action | Formal action | Suspension | The disciplinary enquiry | Appeal procedure

(This policy was consulted on between the University, the UCT Employees Union and NEHAWU, 2004)

  1. General
    1. This code contains general guidelines on the application of the disciplinary procedure and the promotion of fair labour practices pertaining to certain standards of conduct required from employees. While the code outlines the principles of fair procedure for the University and employees generally, it is of particular relevance to the individual employment relationship.
    2. This code applies to all employees as indicated above, and is designed to encourage all employees to achieve and maintain standards of conduct in accordance with their employment contract, specific position requirements and/or University rules.
    3. It is the responsibility of management to adopt disciplinary rules that establish the standard of conduct required from employees, and to ensure that all employees are informed of these standards, University policies and rules, and that they are exercised to all employees in procedurally and substantively fair and consistent manner.
    4. An employee is required to maintain certain standards of conduct. In particular, and without detracting from this general statement, an employee shall:
      1. attend work regularly and punctually for the hours of work specified by the Head of Department within the maximum working hours laid down on the Human Resources website;
      2. perform his/her tasks and position responsibilities diligently;
      3. obey all lawful and reasonable University rules and job instructions issued by Management from time to time;
      4. conduct himself/herself with honesty and integrity;
      5. request permission in advance for any leave of absence, except on good cause;
      6. not absent himself/herself from duty without leave or permission, except on good cause;
      7. not behave insolently, provocatively, or in an intimidatory or aggressive manner towards any other staff member, student or visitor (which may include sexual harassment, racism, racial discrimination and racial harassment);
      8. not use intoxicating drugs while on duty (unless such drugs have been prescribed by a recognised medical practitioner and line management has been informed);
      9. not perform his/her duty under the influence of alcohol and/or intoxicating drugs (unless such drugs have been prescribed by a recognised medical practitioner and line management has been informed);
      10. not misbehave in such a way or be so negligent that this behaviour could endanger others or lead to the damage of the University's property, the disruption of activities or the impairment of the University's reputation;
      11. not intentionally disclose private and confidential information;
      12. not bring to, or house or use on University property any firearm, dangerous weapon or mock weapon (without prior permission).
    5. In the event of an employee making himself/herself liable to disciplinary action by not maintaining acceptable standards of conduct, management reserves the right to resolve the complaint of unsatisfactory conduct quickly and with fairness.
    6. It is the objective of discipline in general, and the disciplinary procedure in particular to discourage misconduct in the first instance, but where misconduct occurred to correct unacceptable behaviour.
  2. Principles
    1. Disciplinary action will be based on the merits and circumstances of each case.
    2. At any stage in this procedure the employee will be informed by his/her immediate superior of the nature of the complaint against him/her, and will be given an opportunity to make his/her case before any decision is made. The notice of any meeting under this procedure must inform the employee of the nature of the complaint being made.
  3. Informal action
    1. It is the philosophy of the University to make every effort to deal with minor problems or incidences of misconduct through informal discussion and supervision in order to avoid the implementation of the formal procedure.
    2. Formal disciplinary action may not be invoked every time an employee breaks a rule or fails to meet a required standard. Unless the misconduct is sufficiently serious, the employee's supervisor/manager shall administer corrective action in the form of informal advice, counseling and verbal warnings.
    3. No record of verbal warning shall appear on an employee's personal file or formal disciplinary record. However, line managers can keep these records for their departmental use. Please note that this will require direct interaction between a staff member and the line manager.
  4. Formal action
    1. In the event of serious misconduct or repeated cases of an employee failing to meet required standards of conduct, the University shall take formal disciplinary action.
    2. For the purposes of this disciplinary procedure, serious misconduct includes, but is not limited to
      1. intoxication or being under the influence of alcohol or other intoxicant
      2. malicious or intentional damage to University property
      3. theft, or attempted theft
      4. unauthorised possession of University property
      5. fraud (including the falsification of documentation and the misuse of leave privileges)
      6. gross negligence
      7. assault or threatened assault
      8. intimidation
      9. breach of confidentiality
      10. persistent late arrival, early departure and/or being absent from the workplace without leave during working hours
      11. failure / refusal to obey a reasonable and lawful instruction
      12. abscondment (unauthorised absence for 5 or more days)
      13. disregard of safety, health and fire regulations
      14. dishonesty or bribery.
  5. Suspension
    1. Formal disciplinary action will normally be taken only if there is prima facie evidence of misconduct. An investigation may be necessary to establish such evidence.
    2. An employee under formal investigation, who is asked to make a written statement, shall be advised by the Investigating Officer beforehand that the statement could be used in a disciplinary hearing. This shall include a person being informed of their right to representation prior to making a statement. The employee may elect not to make a written statement.
    3. An employee under investigation has the right to ask, and be told, the outcome of the investigation, at the end of the investigation.
    4. An employee may be suspended with full pay during the investigation where:
      1. the University has reasonable grounds for suspecting that the employee has committed serious misconduct
      2. the University reasonably suspects that the investigation, or the University, would be prejudiced by the continued presence of the employee at the workplace.
    5. Where an employee is suspended pending the outcome of an investigation, he/she shall be informed in writing the grounds for the suspension. When the investigation is over, he/she shall be informed in writing of the outcome of the investigation.
    6. At the conclusion of the investigation, the Investigating Officer shall meet with the line manager and an HR Practitioner (appointed /delegated by the EDHR). Together they shall consider the evidence, and if it is sufficient to establish misconduct, draft charges shall be formulated. These as well as the evidence shall be referred to the Employee Relations Office which shall have the power to
      1. confirm and/or amend the draft charges
      2. refer the matter back to the Investigating Officer for further investigation and/or consult further with the Investigating Officer, the HR Practitioner and the line manager
      3. to terminate the process if it is satisfied that there is insufficient evidence to establish the alleged misconduct. (with or without consultation in paragraph (ii) ).
      4. Where the investigation indicates misconduct on the part of an employee, a disciplinary enquiry shall be convened no later than 14 days after the investigation is complete.

      If the line manager or the Employee Relations Office, is of the opinion that the conduct complained of is able to be resolved better through a process of mediation, it may be suggested to the complainant and the employee accused of alleged misconduct that resolution should be sought in terms of the University's Mediation policy. If the parties agree but are unable to resolve the matter in mediation, the line manager has the right to institute disciplinary proceedings within 14 days of the conclusion of mediation.

  6. The disciplinary enquiry
    1. Preliminaries
      1. Where an employee has engaged in an act of misconduct he/she shall be notified in advance that he/she is required to attend a disciplinary enquiry. Sufficient time (at least two working days) shall be allowed for the employee to prepare his/her defense for the enquiry.
      2. The notification to the employee shall contain a detailed description of the allegations against the employee, and shall notify him/her of the following rights:
        • The right to be assisted or represented at the enquiry by a fellow University employee or a member of a University recognised employee representative body. Should the employee elect not to have a representative, this shall be recorded in the enquiry record.
        • In the event that the representative of the employee's choice is not available, and provided sufficient notice of the enquiry has been given, the employee may nominate another representative to assist him/her, or make an application for a postponement that shall not be unreasonably withheld.
        • Where a representative needs to represent an employee during working hours, whether or not he/she is a Shopsteward or Trade Union Representative, agreement shall be obtained between him/her and his/her supervisor/manager to be out of the workplace for these purposes.
      3. The above-mentioned notification shall also, where possible, state who will chair the disciplinary enquiry. Should the employee and/or his/her representative believe that the chosen Chair should not hear the case, a motivation to this effect should be submitted to the nominated Chair, a copy of which is to be forwarded to the Employee Relations Office, at any time prior to the commencement of the hearing. The Chair will then decide whether or not to recuse him/herself (see 6b i, second point).
    2. The enquiry: The participants
      1. The chairperson
        • The chairperson of the enquiry shall approach the enquiry with an open and unbiased mind. He/she shall not have been directly involved in the issue or have conducted the investigation which led to the enquiry.
        • Where the chairperson of the enquiry feels that he/she is unable to perform his/her duties impartially, he/she shall recuse himself/herself, and shall give written reasons for doing so to his/her Head of Department (administrative and support departments) or Dean and Head of Department (academic departments).
        • The role of the chairperson shall be:
          • to ensure a fair and orderly procedure
          • to open, conduct and close the proceedings
          • to ensure that all parties fully understand the proceedings
          • to attempt to establish the facts (which may necessitate identifying inconsistencies and probing conflicts in the evidence)
          • to decide the matter only on the evidence presented
          • to make two distinct decisions:

            - a finding regarding the allegations, and

            - if the finding is one of guilt, then a decision on sanction.

          • to ensure that a record of the proceedings is kept. This record shall include the rationale for the chairperson's finding and, where sanction has been imposed, the rationale for the sanction.
      2. The management representative
        • Management may nominate a representative to present its case, providing that such a representative is a University employee.
        • The Management representative shall be required to lead evidence in support of the allegation against the employee.
        • The Management representative shall examine Management witnesses as well as cross-examine witnesses called by the employee, or his/her representative.
        • The Management representative shall be allowed to be present throughout the enquiry but shall not be party to the decision-making process.
      3. The Human Resources Department representative
        • A member of the Human Resources Department shall be present at all disciplinary enquiries where an employee has been accused of serious misconduct. However, the absence of a member of the Human Resources Department at an enquiry shall not prejudice the holding of the enquiry.
        • The primary role of the Human Resources Department shall be
          • to advise the chairperson and the Management representative where necessary regarding the implementation and interpretation of University policy and procedures; and
          • to advise the chairperson on the relevant CCMA, Labour Court and Labour Appeal Court rulings and University precedent.
        • The Human Resources Department representative shall also be allowed to ask such pertinent questions as might clarify substantive issues in the case.
        • The Human Resources Department representative's role is not to be confused with that of the chairperson or Management representative. He/she shall not be party to the decision-making process.
      4. The employee and the employee representative
        • The employee has the right to be assisted by a representative of his/her choice provided that representative is a University employee.
        • The employee and his/her representative shall be present throughout the enquiry.
        • The employee and his/her representative shall be permitted to lead evidence in defense of his/her case, cross-examine Management's witnesses and lead further witnesses.
      5. Witnesses
        • All witnesses in the enquiry shall be required to attend in person, even in cases where they have submitted written statements, to allow for the accused employee and his/her representative to cross-examine the evidence supplied.
        • Where practicable, the evidence against the employee shall be presented orally by the person/s who have personal knowledge of the facts to which they testify.
        • In disciplinary cases such as those involving violence or intimidation, where the complainant/s or witness/es can reasonably be expected to fear for their or their family's safety, special arrangements may be introduced to protect identities, but every effort shall be made to ensure procedural fairness.
        • In exceptional circumstances, a witness may request permission from the chairperson to be accompanied by a support person (e.g. in a harassment case).
    3. The enquiry: The process
      1. The enquiry shall be divided into two parts
        • consideration of the evidence presented, and

          where a finding of guilty is reached, the enquiry shall proceed to

        • consideration of aggravating and mitigating circumstances.
      2. In considering the evidence, the chairperson shall take account of all relevant evidence, as presented. The chairperson of the enquiry shall then make a finding, on the charges or lesser charges consistent with the circumstances in the case. The findings shall be based on a balance of probabilities.
      3. If the facts do not support the allegation made, the enquiry shall be closed and the employee cleared of the specific allegation. Where a finding of guilty is noted, the employee shall be informed and the enquiry shall proceed.
      4. When a finding of guilty is made the employee and his/her representative shall be given the opportunity to lead evidence in mitigation of the possible adverse sanction.
      5. The Management representative shall be given the opportunity to lead evidence of any aggravating circumstances.
      6. In addition to considering any evidence led in terms of 6c iv and 6c v above, and prior to making a decision on sanction, the chairperson of the enquiry shall have regard to any other mitigating and aggravating circumstances contained in the personal file of the employee.
      7. The chairperson of the enquiry shall convey his/her decision on sanction at the end of the enquiry. The decision shall be given to the employee and his/her representative in writing as soon as possible after the enquiry.
      8. In the case of the sanction being dismissal, the chairperson of the enquiry shall sign the letter notifying the employee of his/her dismissal.
      9. The chairperson of the enquiry shall produce a written report of the salient points in the enquiry. At the request of the employee, a copy of the report shall be sent to him/her or the employee's representative within 2 working days. Any delay on Management's part will extend the periods referred to in paragraph 7.
    4. Possible sanctions
      1. The sanction applied shall depend on
        • the seriousness of the case, and
        • mitigating and/or aggravating circumstances (including the employee's previous record and especially repeated offences of the same or similar nature).
      2. Formal disciplinary action may take the form of one of the following sanctions
        • written warning
        • final written warning
        • consolidated final warning
        • dismissal with notice
        • summary dismissal.
      3. Written warnings shall be valid for a specified period of not less than six months.
      4. Final written warnings shall normally be valid for a specified period of not less than twelve months. In cases that are sufficiently serious to warrant dismissal, but an alternative to dismissal is considered, a final written warning for a period longer than twelve months could be issued.
      5. An employee receiving a written warning or a final written warning should sign it in acknowledgement of receipt. Such signature shall not prevent or in any way influence an appeal. If the employee refuses to sign the warning, this fact shall be recorded on the warning and signed by a witness. Refusal to sign is not a disciplinary offence.
      6. Dismissal may be warranted where
        • an employee has failed to respond to corrective action, i.e. misconduct while there is a current final written warning on file, or
        • an employee continuously engages in various forms of unrelated misconduct for which he/she have current warnings, which have been consolidated into a final written warning.
        • the misconduct is serious, such that it is not reasonable for the employment relationship to be continued.
      7. The employee, in the case of dismissal with notice, shall subject to the chairperson's discretion be paid out in lieu of notice, up to the period as reflected in the employee's contract of employment.
      8. Where there has been gross misconduct or a complete breach of the employment contract (e.g. theft, fraud), an employee may be summarily dismissed. Dismissal is with immediate effect and the employee shall be paid up to the date of dismissal only.
    5. Administration
      1. An employee who is issued with a written, final written or consolidated final written warning would only be required to sign it in acknowledgement of receipt. The employee's signature on the warning form shall not prevent or in any way influence an appeal against the sanction. If the employee refuses to sign receipt of the warning, this fact shall be recorded on the warning form and signed by a witness. Refusal to sign a warning form is not a disciplinary offence.
      2. The original warning shall be given to the employee, one copy shall be filed on the employee's personal file in the Central Registry in the Human Resources Department, one copy kept by the supervisor/manager and a copy issued to the Employee Relations Office for its records.
      3. Upon expiry of the period of the warning, the employee may approach the supervisor/manager and ask for the copy of the warning kept by the supervisor/manager. No record of the warning shall thereafter be kept in the files of the supervisor/manager. Only the personal file kept in the central Registry of the Human Resources Department shall retain the "expired" warning forms.
  7. Appeal procedure
    1. An employee has the right, either personally or through his/her representative, to appeal against any formal disciplinary action.
    2. The basis for the appeal must be stated and may include but is not limited to
      1. jurisdiction
      2. procedural irregularities
      3. evidentiary problems
      4. factual findings of the chairperson
      5. problems surrounding the sanction imposed
      6. problems relating to the impartiality of the chairperson.
    3. In the case of a written warning, the appeal should be lodged with the senior of the person who issued the warning. The appeal should be lodged within 3 (three) working days of the issue of the warning. The senior addressed or, if appropriate, another line manager shall either hold an oral hearing or consider the matter on papers in order to decide the case. If the chairperson of the appeal decides to hold an oral hearing, he/she shall convene a hearing within 14 (fourteen) calendar days of receipt of the appeal.
    4. In the case of a dismissal, the appeal should be lodged in writing with the Registrar, via the Employee Relations Office of the Human Resources Department, within 7 (seven) working days of the dismissal. The Registrar, or Registrar's nominee, shall either consider the matter on papers or convene an oral hearing in order to decide the case. The hearing shall be convened within 14 (fourteen) calendar days of receipt of the appeal.
    5. The chairperson of the appeal may accept a notice of appeal lodged after the expiry of the said time limits, on good cause shown by the employee.
    6. The chairperson of the appeal shall not have been directly involved in the original enquiry or the investigation.
    7. The appeal hearing shall consider all the issues raised on the grounds of notice of appeal, including where relevant
      1. procedural issues
      2. the finding of the original enquiry, and
      3. sanction.
    8. A decision shall be given within 7 (seven) working days of receipt of the appeal if no hearing is called, or within 7 (seven) working days of the conclusion of the appeal hearing. This decision will be given as soon as possible thereafter in writing. This decision shall be final and shall indicate the end of the internal disciplinary procedure.

Page last updated: 10 October 2013