04/10/23

Ayubowan

Jayadeva de Silva. M,Sc,FIPM,FITD

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© 2006 Thomson-Wadsworth

©Jayadeva de Silva

The Purpose of Employee Discipline

Employee DisciplineA tool used by managers to improve poor

performance and enforce appropriate behavior to ensure a productive and safe workplace.

Discipline PrinciplesDiscipline

Preventive Corrective

Positive Negative

Progressive

Sandwich

Counseling

Hot Stove Rule

Contingencies

Victimization

False allegations

Biased

No Inquiry

Natural Justice '

Malice

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Organizational Policy and ProcedureImportance of a written disciplinary policy

and procedureProtects manager and organizationGuarantees rights of employeeTeaches manager how to discipline employees

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Disciplinary Procedure

Jayadeva de Silva

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Organizational Policy and Procedure – ComponentsProcedure - usually has a minimum of 4

steps:Verbal warningWritten warningSuspensionTermination

Purpose to have a disciplined work force

Strict adherence to gain the confidence of employees towards the disciplinary procedure

Disciplinary Procedure

Why indiscipline?Ignorance of rules Physical/ mental incapabilityAbsence of proper trainingDiscontented workmenMisguidance by Trade Union leadersAbsence of standard policies of handling

disciplineUncongenial working conditions

Indiscipline requiring actionAbsenteeismHabitual Late comingOverstaying leaveDisobeying rules/ standing ordersInsubordination Misappropriation of funds or valuablesMisconduct

Preliminary InvestigationShow cause / charge sheetReceipt of explanation Domestic InquiryFindings of the Inquiry Report PunishmentsSubsequent Actions after Termination

Labour Tribunal Appeal against the decision of the L.T.

Steps

Preliminary Investigation

Record a statement of the complainant

Materials and documents connected to the incident should be removed, sealed and taken to the custody of the relevant authorized officer immediately, giving no room to alter

Preliminary Investigation

Record the statements of the witnesses to the incident

Study fast and gain an idea what exactly has happened

Record a statement from the suspected employee/employees as soon as possible

Analyze all these evidence to establish whether there is any act of misconduct to pursue further

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A place without disturbancesA reliable person to take down in clear

handwritingNo erasing/tipp-exStart with mentioning place date & time In direct speech Continuation of the pages and page

numberingConclusion

Recording statements

Recording statements with fresh memories before influences

Identifying witnessesFacts for better decision to hold an inquiry or not

Facilititate in preparing counts in show cause

Advantages of holding a Preliminary Inquiry

Outcome of the Prelim. Invest.Prima facie caseSeparate counts for each misconduct

Start of the letterReply before when (sufficient notice0

State action if no reply receives (ex-parte inquiry)

Show cause / charge sheet

When the employee is involved in a major misconduct and the chances are high to prove such, which warrants termination

Where the presence of the employee in the work place could seriously affect the inquiry, specially the possibility of influencing the witnesses or tampering documents relevant to the inquiry

Payment during interdiction

Interdiction

Reply to the charges may be◦ Denying / rejecting all charges

◦ Pleading for mitigatory circumstances

◦ Pleading guilty for all or some charges

◦ Request for further time

◦ No reply at all

Receipt of explanation / no reply

Advantages of holding a domestic inquiryRespect for the principle of natural justice of giving a reasonable opportunity to the employee of being heard in his defense

Establishing employer’s bona fides at a subsequent L.T. inquiry

Domestic Inquiry

Recording all evidences, of which some may not be able to locate at a later stage (L.T.)

Recording of all incidents which may not be able to remember by witnesses at a later stage (L.T.)

Accused employee will not be able to change his stand at a later stage

Reasonable notice of the case must be given to the accused employee.

Reasonable opportunity of being heard in his/her defense (allowing the accused to defend/present his side of the case)

Principles of Natural Justice

Independent inquiry officer (not a person directly involved in the issue)

Inquiry officer to act in reasonably & in good faith, not arbitrarily and to ensure fair play

BALANCE OF PROBABILITY

What is balance of probability?

MADHU.T.K

Caliber of person

The role of the inquiry officer is to decide whether charges stated in the charge sheet are proved or not based on evidence laid before him

Role of the inquiry Officer

The charges should be explained to the accused and asked whether the accused plead guilty or not for each count separately

Prosecuting officer to lead evidence-in-chief, cross examine by defense, re-examine by prosecution & question by the Inquiry Officer

After finishing witnesses for the prosecution, evidence-in chief by defense, cross examine by prosecution, re-examination by defense & question by the Inquiry Officer for witnesses for the defense

Inquiry Officer can call any witness again to clarify any point

Leading questions are not permitted

Written submission may be allowed after concluding the oral evidence

Prosecuting OfficerProsecuting/inquiring togetherDefense

Silent observer Defending officer

Fellow workerBranch union officialParent union OfficialOutsider/not a lawyer

Other Roles

Inquiry report Decision on each count Facts based on for the judgment No recommendation for punishment

Punishment According to the outcome Past record Industrial relations aspects

Conclusion of the inquiry

Important Points

MADHU.T.K

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Charge SheetMemorandum of chargesStatement of allegations of misconduct/

omission/ negligenceNo particular format prescribed for charge

sheet in any Labour enactmentThe object is to give the employee exact idea

of the misconduct committed by him so that he may get reasonable opportunity to defend.

Requisites of Charge sheetIt should contain complete picture of

misconductIt should state that the act of commission or

omission resulting in misconduct is violation of a particular clause of standing order

Language to be as per Standing Orders or as required by the delinquent

Enclose a list of witnesses in support of charges

Be specificCharges leveled should be specifically stated-

avoid ‘ etc..etc’/ ‘ other’/ ‘any’/ ‘ some people’ like expressions.

The amount misappropriated should be specific sum and not ‘ around’

Person manhandled should be Mr./Ms. X and not ‘ some one’

Time of misconduct should be exact- avoid ‘around’ time.

Charge sheet for using offending language should contain the exact word used.

Service of Charge sheetAs stated in the Standing OrdersServe the charge sheet personally against

signature on the duplicate copy/ delivery bookIf absent/ on leave/ under suspension, paste it

on the wall of the residence of the delinquent By Registered PostDisplaying in the Notice Board of the companyPublishing in the regional newspaper

Domestic EnquiryFollow rules laid down in Standing

OrdersPurpose of domestic enquiry - Provide delinquent an opportunity to

defend the charges Provide employer an opportunity to

evaluate the situation and decide the penalty to be imposed

Notice of Enquiry to be servedNotice to show the Date and Time of enquiryVenue of holding enquiryName of the Enquiry OfficerNotice to be served in the same manner as

followed to serve charge sheetWorkman shall have right to appoint a

Defense HelperWhen legally trained person represents

management in enquiry, workman shall also be allowed to be represented by lawyer (Hindustan Teleprinters Ltd Vs Mr. Rajan Isaac.)

Recording the EvidencesQuestion- Answer pattern may be followedStatement of Management to be taken firstCross examination by employee/ helperTake signature of the concerned on recordExamine and cross examine witnessesObject/ Disallow irrelevant questions

Show Cause NoticeBefore punishment is initiated a Show Cause Notice

highlighting the charges, findings of the enquiry and possible penalty imposed on the delinquent shall also be served calling on him to show cause ‘why action including discharge or (even dismissal) shall not be taken against’ the delinquent.

Though serving of such notice will not make the process of enquiry invalid (as decided in S. Shenbagaraj Vs Additional Commissioner of Industries and Commerce, Chepauk and others.), it is advisable to give the employee a final opportunity before punishment is inflicted.

Enquiry report to be furnished to the employee

Order of PunishmentPrinciples of natural justice to be

followedOrder issued without holding a

domestic enquiry or after holding a defective enquiry will not stand since Labour Court/ Tribunal can interfere with such order

Some Sample letters

MADHU.T.K

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© 2006 Thomson-Wadsworth

Charge sheet- absenting without intimationTo Date: ------------- Sub: Absenting without intimation-

You have been absent since_____ (date)/ overstaying leave granted since_____ (date)

Absenting without leave/ overstaying of leave is an offence as per rule ___ of our Standing Orders and as such your act of absenting without intimation is a misconduct which attracts such punishment including termination of service.

Accordingly you are hereby called upon to explain in writing within 48 hours as to why appropriate action should not be taken against you.

Sd/- Appropriate Authority/ Authorised

Signatory

Charge sheet- misbehaviorTo ------- It is reported that on ____(date) at _____(time) you

misbehaved with Mr./Ms._____ (name), ____ (designation) in the presence of ______ (as witnesses)

Disobeying orders and misbehaving are serious misconduct as per rule____ of our Standing Orders which attract punishment including dismissal from service.

Accordingly you are hereby called upon to explain in writing within 48 hours as to why appropriate action should not be taken against you.

Sd/- Appropriate Authority/

Authorised Signatory

Notice of enquiry To Date: -------- Sub: Enquiry u/r ___ of Standing Orders Ref: Charge sheet No.____ dated______ Your explanation dated____

Since the explanation given by you as cited above is found unsatisfactory, a domestic enquiry u/r ____ of the Standing Orders has been initiated to decide on the charges.

The enquiry will commence at 9.30 am on ___ (date) at _____ (venue)

You are hereby required to present in person with or without a helper to give any clarification to defend the charges against you.

Mr./Ms. ____ will be the Enquiry Officer.Sd/-

Authorised Signatory

Enquiry Proceedings Enquiry proceedings in to the charge sheet No____ dated ___ issued to

Mr.___ (Time, date and place of enquiry)Present 1. Charge sheeted employee 2. Defense helper 3. Management representativeThe charges leveled against the employee were read over and explained to

the employee.(Examination of management witness- statement in support of charges) Name and details of witnessStatement/ questions and answersSignature of witnessSignature of charge sheeted employee with a declaration that the

statement has been recorded in his presenceSignature of Enquiry Officer(Cross Examination by Employee/ defense helper)-Same process as above-(Examination of witness against charges)-Same process as above-(Cross Examination by management representative)-Same process as above- * If any one does not want to cross examine, the same may be

recorded as “ opportunity given for cross examination but declined to cross examine” with signatures

Show Cause Notice To

Date --------- Sub: Shaw Cause Notice WHEREAS you were charge sheeted for an offence as stated.AND WHEREAS you were granted an opportunity to defend the charges

by way of Domestic enquiry which commenced on ____ and ended on ___ (dates)

AND WHEREAS you have failed to prove your innocence before the Enquiry Officer.

NOW THEREFORE, the management is constrained to take disciplinary action against you.

Without prejudice and following the Enquiry Officer’s report your act of omission/ commission has been proved to be a serious misconduct which attracts punishment which may extend to dismissal from service.

THEREFORE, you are hereby called upon to show cause why disciplinary action including dismissal should not be taken against you/ why you should not be removed from service. A copy of the findings of the Enquiry Officer is enclosed herewith for your perusal.

Your written reply should reach the undersigned within____ days.Sd/-

Authorised Signatory

Termination OrderTo

Date -------- Sub: Order of Termination of Service Ref: Charge sheet No____ dated____

Pursuant to the charge sheet above referred and findings of enquiry report dated____, the management has come to the conclusion that the charges leveled against you have been proved categorically.

As you have been found guilty of serious misconduct, the management has decided to dismiss you from service with effect from/ with immediate effect.

You are, therefore, directed to settle your dues including salary dues and handover ……..to Mr________ during office hours on_________

Sd/-Authorised Signatory

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Disciplinary decisions are challenged through the Industrial Disputes Act No. 43 of 1950.

MADHU.T.K

Industrial Disputes Act No. 43 of 1950.

An industrial dispute “any dispute or difference between an employer and an employee or between employers and employees connected with the employment or non employment or the terms of employment or with conditions of labour or the termination of employment or the reinstatement in employment of any person”

Selection of witnesses & preparing them for the trial

Availability of the witness

Reliability of the witness specially if the witness is no longer in the employment

LABOUR TRIBUNAL

MADHU.T.K

Any possibility of witness is being approached / influenced by the applicant

Ability of the witness to give a strong answer (the way the evidence were given at the domestic inquiry)

Secondary Evidence Appeal against the decision of the L.T.

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Question?Why do we need a Disciplinary Procedure for an organization?

MADHU.T.K

Why do we need disciplinary procedure?1) To convince a tribunal a third party that the

employer acted in bona fide and that there was no victimization.

2) To show that rules of natural justice had been followed in arriving at a decision

3) The employee has a right which is stemming from rules of natural justice that he should be given an opportunity to be heard.

4) As a means documenting and recording the statements from the eye witnesses at the preliminary investigation stage, to document all the evidence of the witnesses at the domestic inquiry so that witnesses will not subsequently change their stances.

Why do we need disciplinary procedure?

5) If it is stipulated by a collective agreement the employer is expected to follow the same procedure.

6) To see whether there are any mitigatory factors that we should take in to consideration before punishment

7) Finally having a good administrative policy is a form of eradicating employee dissatisfaction.

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ConclusionEmployee discipline should be used for

the purpose of helping the employee to correct behavioral or performance problems that have a negative impact on the workplace.

A disciplinary policy and procedure should be in place that includes a policy statement, the purpose for the policy, and a step-by-step procedure (with specific timelines) for the process.

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ConclusionThe usual steps in a disciplinary procedure

include the following disciplinary actions:Verbal warningWritten warningSuspensionTermination

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ConclusionManagers must use judgment, empathy,

consistency, and fairness when administering employee discipline.

All disciplinary actions should be documented in a factual, nonjudgmental way.

djayadeva@gmail.com

Jayadeva de Silva