Thesis (MEcon)--Stellenboschniversity, 2002. / ENGLISH ABSTRACT: The application of discipline is crucial for the South African Police Service. The new political dispensation in South Africa resulted in the amalgamation of different police departments and the use of the Discipline Regulations of 1995 as the new standard of discipline. The magnitude of the police service makes the application of discipline difficult and results in lengthy disciplinary procedures that cause high levels of frustration and stress amongst police officials. The high suicide rate amongst police officials raises questions regarding the factors that cause undue pressure. This led to the interest for this study and the following research questions: Firstly, how do police officials perceive the fairness of the disciplinary procedures of the SAPS. Secondly, what guidelines can be developed to enhance the police official's perception regarding the fairness of the disciplinary procedure. The theoretical perspective focused on discipline in organisations and procedural justice to describe fairness perceptions. The present study was divided into two phases. Firstly, to identify and describe the police official's experience of the disciplinary procedures of the SAPS and secondly, to develop guidelines that would enhance the fairness experience of the disciplinary procedures by police officials. The study was qualitative, exploratory, descriptive and contextual in design, The data was obtained by means of phenomenological interviews with respondents of two different populations, namely police officials that were exposed to a departmental tribunal, and experts of the disciplinary procedures of the SAPS. Once saturation level of the data was obtained, interviews were transcribed verbatim. Data was analyzed by utilizing the steps described by Tesch (Cresswell, 1994). The services of an independent decoder were also called in during the data analysis. Various themes were identified, as having an influence on the police official's experience of the disciplinary procedures of the SAPS. These are as follows: Police officials experience discrimination amongst members; that the process is emotionally exhausting; that the process becomes needlessly complex due to many petty or unnecessary charges; that there is a lack of consistent actions between the different role players in the process. The expert respondent group identified the following themes: There is a lack of consistent actions in the application of the process; cases are unique in nature and are assessed on merit; cases are often delayed; police officials experience the process as traumatic; station commissioners do not investigate cases properly; there is either a lack of emotional support or it is been wrongly applied. Throughout the process, steps were maintained to ensure trustworthiness. A literature control was also conducted to verify themes. Themes of the expert group were also used to verify themes of the police officials' group. Guidelines intended for use by supervisors and commanders were drawn up. These were based on the data obtained. The guidelines are supported by the existing Discipline Regulations (RSA, 1996), as well as the Discipline Guidelines (SAPS, 1996). It should therefore be of great value and use to supervisors and commanders. Recommendations for the application of the results in discipline practices, discipline education and further research concerning the discipline paradigm are discussed. In conclusion, findings indicated that police officials experience the disciplinary procedures of the SAPS as stressful and frustrating, and often as traumatic and emotionally exhausting. Supervisors and commanders should therefore endeavor towards the effective application of discipline in order to allow for a more fair perception of the process by their subordinates. It could also be advantageous towards the change of undesirable behaviour and to enhance moral and organisational climate at the station or unit. / AFRIKAANSE OPSOMMING: Die toepassing van dissipline is onontbeerlik vir die Suid-Afrikaanse Polisiediens. Die nuwe politieke bestel in Suid-Afrika het die amalgamering van onderskeie polisiedepartemente tot gevolg gehad, en Dissipline-Regulasies wat gedurende 1995 uitgevaardig is dien nou as maatstaf vir dissipline-toepassing. Die omvang van die polisiediens maak die toepassing van dissipline moeilik en veroorsaak dat die dissiplinêre prosedure dikwels uitgerek word en dat dit baie spanning en frustrasie onder polisielede veroorsaak. Die hoë selfmoordsyfer onder polisiebeamptes veroorsaak baie vrae ten opsigte van die faktore wat onnodige druk op hulle mag plaas. Dit het aanleiding gegee tot hierdie studie en die stel van die volgende navorsingsvrae: Eerstens, hoe billik polisiebeamptes die SAPD se dissiplinêre prosedure beleef. Tweedens, watter riglyne ontwikkel kan word sodat werknemers die SAPD se dissiplinêre prosedure as meer regverdig en billik beleef. Vanuit 'n teoretiese perspektief is gekonsentreer op die toepassing van dissipline in organisasies, asook prosessuele geregtigheid wat poog om die billikheidservaring van werknemers te beskryf Die studie was in twee fases ingedeeL Eerstens, om die polisiebeampte se belewenis van die SAPD se dissiplinêre prosedure te identifiseer en te beskryf en tweedens, om riglyne op te stel sodat die toepassing van dissipline as meer billik en regverdig beleef kan word. Die studie was kwalitatief, verkennend, beskrywend en kontekstueel van aard. Die data was ingesamel deur fenomenologiese onderhoudvoering met deelnemers van twee populasies, naamlik polisiebeamptes wat self 'n departementele tribunaal beleef het, asook kenners van die SAPD se dissiplinêre prosedure. Nadat alle data versadig was, is die onderhoude verbatim getranskribeer. Data-analise wat gebaseer is op die stappe soos beskryf deur Tesch (Cresswell, 1994), het hierna gevolg. Tydens die proses van data-analise is daar vir kontroledoeleindes, ook gebruik gemaak van die dienste van 'n onafhanklike kodeerder. Op hierdie wyse is verskillende temas, kategorieë en sub-kategorieë geïdentifiseer ten opsigte van die polisiebeampte se belewenis van die SAPD se dissiplinêre prosedure. Dit kan soos volg beskryf word: Polisielede is van mening dat daar tussen polisiebeamptes gediskrimineer word; dat die proses emosioneel uitputtend is; dat die proses onnodig ingewikkeld gemaak word met baie geringe of onnodige aanklagte; en dat daar nie konsekwente optrede tussen die verskillende rolspelers in die proses bestaan nie. Die temas, kategorieë en sub-kategorieë van die kennergroep kan soos volg vermeld word: Daar bestaan 'n gebrek aan konsekwentheid in die toepassing van die proses; sake bly uniek en word op eie meriete beoordeel; sake sloer dikwels te lank; polisiebeamptes ervaar die proses as traumaties; stasiekommissarisse ondersoek nie altyd sake behoorlik nie; en dat emosionele ondersteuning dikwels ontbreek ofverkeerd toegepas word. Daar is deurgaans aandag geskenk aan aspekte om geloofwaardigheid te verseker. 'n Literatuurkontrole is uitgevoer om die temas te bevestig. Die kennergroep se temas is ook gebruik om die polisiebeamptegroep se temas te verifieër. Riglyne vir dissiplinetoepassing, is vir bevelvoerders en toesighouers opgestel. Die riglyne is gebaseer op die data wat verkry is. Die riglyne word ondersteun deur die bestaande Dissipline- Regulasies (RSA, 1996), sowel as die Dissipline-Riglyne (SAPS, 1996) en behoort daarom met groot vrug gebruik te kan word. Aanbevelings vir die toepassing van die resultate in dissiplinepraktyke en dissipline-opleiding, asook die bevordering van navorsing gemoeid met die dissiplineparadigma is ook bespreek. Dit gevolgtrekking is gemaak dat polisiebeamptes baie spanning en frustrasie met die toepassing van die SAPD se dissiplinêre prosedure beleef, en dat dit meestalook as traumaties en emosioneel uitputtend ervaar word. Toesighouers en bevelvoerders behoort daarop ingestel te wees om dissipline meer effektief toe te pas, sodat hul werknemers die proses as meer billik en regverdig ervaar. Verder mag dit moontlik die voordeel inhou dat groter suksesse behaal word in die verandering van ongewensde gedrag en kan dit ook die moraal en organisasieklimaat van die stasie of eenheid verbeter.

The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.

M.Comm. / The purpose of the study is to determine, through literature research, what the current situation is regarding Labour Relation Management in Education. In order to search for answers, various resources have been used -the majority of which are primary and authoritive of nature. In the first instance a few basic concepts and definitions in labour law in education were studied. Issues which were discussed focused on the definition of employer and employee and the relationship between them. The professional nature of the teaching profession was discussed, including the various councils which have an impact on industrial relations in education. In chapter three an in depth analysis has been made of the role of the various legislation regarding industrial relations in the educational field. The focus of this analysis was on the following key legislation: The Constitution 108 of 1996 The Labour Relation Act 66 of 1995. The Employment of Educators Act 76 of 1998. The Basic Conditions of Employment Act 75 of 1997 The Employment Equity Act 55 of 1998 The Development of Basic Skills Act. South African Schools Act 84 of 1996 10 Regulations: Regulations Regarding Terms and Conditions Of Employment of Educators R 1743 OF 13 November 1995. Regulations on Personnel Administration Measures (PAM) 18 February 1999. In chapter four the disciplinary process in education was discussed at length. The focus here was on the disciplinary code, principles of the disciplinary process as well as internal disciplinary procedures -specifically by whom and at what level it should be managed. A clear distinction was made between internal and external procedures. The principle of natural justice under the audi alteram partem and the nemo iudex in propria causa principle was discussed. An important aspect here is the appointment and dismissal of teachers in governing body posts. In chapter six the grievance procedure in education-such as the definition of grievance and how it should be dealt with, were discussed. The management of grievances as quickly and as close as possible to the cause as well as the reaction and conduct of the parties concerned, were also discussed. In conclusion the study was summarized and certain shortfalls highligted. Certain recommendations were also made, especially concerning the Administrative Act 3 2000, and the use thereof in labour relations.

In the employment context employers may view certain conduct/behaviour committed by an employee or a group of employees to be repugnant and unacceptable resulting in the disciplinary action that may lead to a dismissal sanction taken against such employee or employees. Even though the employer has a right to discipline the employees for a contravention of a rule or a policy and even dismiss the employee/s involved, such a disciplinary action and dismissal must be based on a certain procedure where the principle of fairness must be adhered to. The Labour Relations Act 66 of 1995 (“the Act”) and Schedule 8 of the Code of Good Practice deals with the aspects of dismissals related to conduct and capacity, however, each case is unique, it has to be approached on its own merits. Schedule 8(3) states that, “formal procedures in disciplinary measures do not have to be invoked every time a rule is broken or a standard is not met”. It is therefore necessary that there should be a disciplinary code which guides the workers and the employers, it must be clear and be understood by all the parties. The disciplinary code of conduct serves as the foundation of good discipline because everybody knows the consequences of his/her contravention of those guidelines enumerated in the Code of Conduct. The Code of Good Practice under Schedule 8(3), states that “while employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”, so a very good relationship between the two parties is most important if there is to be stability and industrial peace in the workplace.

Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis

It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.

Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.

Thesis (M.Law) -- University of Limpopo, 2007 / Refer to document

Thesis (MPA.) -- University of Limpopo, 2015 / The Department of Justice and Constitutional Development has been mandated by the government of the day to render accessible, fair, speedy and cost effective administration of justice in the interest of a safer and more secure South Africa. The department then set service standards to be able to achieve its goals. Like other departments in the country, the department of Justice has officials who perform duties to ensure that service is delivered to people. These officials have to conduct themselves in an acceptable manner prescribed by the employer. Since the code of conduct has been developed to promote and maintain high standard of professional ethics throughout the public service, the code of conduct is mandatory if effective service delivery is to reach all South Africans. Public servants must ensure that their conduct conforms to the basic values and principles governing public administration. The research focused on how discipline is managed in Malamulele cluster magistrate’s courts, in Limpopo Province, South Africa. Qualitative research methodology was used. Results indicated that some structures and individuals know their roles and responsibilities in management of discipline, however the understanding is only to a certain extent. Managers have been made to believe that it is proper to attend only less serious misconducts and refer the serious ones to the labour relations section at the regional level. Recommendations were advanced on activities that need to be performed in order for discipline to be well managed.

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.