Department Of Correctional Services Disciplinary Code

Department Of Correctional Services Disciplinary Code

PURPOSE

The purpose of the Disciplinary Code and Procedure is:



  • To ensure that all disciplinary action against employees takes place in a fair manner (consistent, uniform, timely, impartial, and confidential).
  • To correct the unacceptable behavior of employees;
  • To ensure that the DCS attains its goals in an orderly manner;
  • To act in a preventative, progressive, and rehabilitative manner in respect of employees;
  • To ensure that employees have job security;
  • To support constructive labour relations in the DCS;
  • To promote mutual respect between employees and employers;
  • To ensure that managers and employees share a common understanding of misconduct and discipline;
  • To provide employees and the employer with a quick and easy reference for the application of discipline;
  • To prevent arbitrary or discriminatory actions by managers towards employees.

 

 PRINCIPLES

The Disciplinary Code and Procedure and any decision to discipline employees must be based on the following principles:

  • Discipline is a corrective measure and not a punitive one;
  • Discipline must be applied in a prompt, fair, consistent, uniform, timely, impartial, confidential and progressive manner;
  • Discipline is a line management function;
  • The Disciplinary Code is necessary for effective service delivery and for the fair treatment of employees. It ensures that employees:
    • Have a fair hearing in an informal or formal setting;
    • Are timeously informed of allegations of misconduct made against them;
    • Receive written reasons for a decision taken; and
    • Have the right to appeal against any decision.
  • As far as possible, disciplinary procedures shall take place in the place of work and be understandable to all employees;
  • Employees can only be disciplined for work-related misconduct;
  • If an employee commits misconduct that is also a criminal offense, the criminal procedure, and the disciplinary procedure will continue as different and separate proceedings;
  • Disciplinary proceedings do not replace or seek to imitate court proceedings.

 

 SCOPE OF APPLICATION

The Disciplinary Code and Procedure is applicable to all employees employed in the Department of Correctional Services (excluding the Commissioner in respect of whom the provisions of the Public Service Act shall apply).

 DISCIPLINARY SANCTIONS/ACTIONS

Disciplinary action can be informal or formal.

 Informal disciplinary action

Informal disciplinary action entails performance counseling/verbal reprimands/warnings in respect of minor transgressions, usually after the first or second transgression. Depending on the nature and seriousness of the transgression, it is not a prerequisite that formal disciplinary actions be preceded by informal disciplinary actions.

 Formal disciplinary action

Disciplinary action will usually be applied progressively. This implies that repeated similar or related offenses might result in more serious disciplinary action. However, depending on the nature and seriousness of the transgression, a first transgression can result in serious disciplinary action.

 Verbal warning

Although a verbal warning is a sanction usually imposed following informal disciplinary measures, it is also an option to be considered following formal disciplinary measures for a first offence if found during the hearing that the offense was indeed a minor transgression.

 Written warning

A written warning can be imposed indicating to the employee that his or her behavior is unacceptable to Management and that a similar or related transgression could result in more serious disciplinary action.

 Serious written warning

When a transgression is committed which is similar or related to a previous transgression in respect of which a written warning is still valid, or if a transgression is committed which is serious enough, a serious written warning may be issued. Final written warning When a transgression is committed which is similar or related to a previous transgression in respect of which a previous serious written warning is still valid, or if a transgression is committed which is serious enough, a final written warning may be issued. A final written warning is an indication to the employee that a similar or related transgression could in all probability result in dismissal.

Dismissal

Should a transgression be committed which is similar or related to a previous transgression in respect of which a final written warning is still valid, it can result in the dismissal of the employee.
If the presence of the dismissed person is undesirable in the workplace for a very good reason during the notice period, such a person can be dismissed with “payment in lieu of notice”. This implies that the dismissed person will receive payment for thirty days in the place of the notice period and shall not return to work.

Furthermore, an employee can be summarily dismissed for an extremely serious transgression after the application of this procedure. This course of action may even be followed in respect of a first transgression. In such a case an employee will not be entitled to a notice period.

NB: If an employee lodges an appeal upon a dismissal sanction, he or she remains in service until the outcome the appeal hearing.

 VALIDITY DURATION OF WARNINGS

A verbal warning is valid for three months. All written warnings are valid for a period of six months. At the expiry of warnings, it must be removed from the employee’s personnel file and other related records and be destroyed.

LEVEL OF RESPONSIBILITY AND AUTHORITY TO TAKE DISCIPLINARY ACTION

Discipline is a line-management function. The Commissioner shall delegate powers to different levels of line-management for the application of discipline.

 THE DISCIPLINARY PROCESS

When a transgression is committed which requires disciplinary action, the following process shall be followed:

 Investigation

Upon being informed of an alleged transgression, the direct supervisor or investigator appointed by Management must investigate the incident. The investigation can be informal (in the event of a minor transgression) or formal (in the event of more serious misconduct).
The supervisor must inform the employee of any formal investigation, the results of which may be used at the disciplinary inquiry.

 Incident report

Once the investigation has been completed and a decision taken to discipline an employee the direct supervisor/appointed Initiator must complete an incident report. (Annexure A).

 Notice of disciplinary hearing/inquiry

Employees must be given reasonable time, but at least seven (7) working days’ written notice of the disciplinary hearing. The notice period can be waived upon mutual agreement between the alleged transgressor and the Initiator.

The notice must be in writing by means of the applicable notification form, which will indicate the alleged transgression as well as the date, time, and venue of the hearing (Annexure B). The notice of the disciplinary hearing must contain information regarding the alleged transgression and the rights the employee is entitled to, and as is reasonably required to enable the employee to prepare for the hearing. It must include a clear description of the offence – i.e. the charges must be properly defined/formulated to provide a clear description of the alleged misconduct.

Upon being informed or notified of a disciplinary hearing, the employee may request the presence of his or her shop steward or union official or fellow employee to assist him or her. If the employee cannot secure the presence of his or her shop steward or union official or fellow employee within 24 hours, the employer shall continue to serve the notice on the employee in the presence of any witness.

Together with the notification, the employer must furnish the alleged transgressor with a summary of the investigation report and with a copy of statements. However, in order to protect witnesses from possible victimization, the names and Persal numbers must be deleted or blocked out from the summary of the investigation report and the copy of statements. Cognisance must also be taken that not all disciplinary hearings will be preceded by formal investigations and or written statements by witnesses.

 Time frame

The formal disciplinary hearing should be finalised within a period of 30 days from the date of finalisation of the investigation. If the time frame cannot be met, the parties involved must be informed accordingly with reasons for the delay. If the employer, without good reason, fails to institute disciplinary proceedings within a period of 3 (three) months after completion of the investigation disciplinary actions shall fall away.

 Arrangements for a disciplinary hearing

The Initiator and the Head Personnel are co-responsible for arranging a venue, date and time for a disciplinary or appeal hearing and for notifying all involved parties.
The venue must be large enough to accommodate all persons that ought to be present. Since disciplinary and appeal hearings are held in camera, the venue should be free from any interruption.

 Persons present at the disciplinary hearing

Disciplinary hearings are regarded to be confidential and shall be held in camera. Only the persons mentioned hereafter should be allowed to be present.

  • Chairperson – to preside in the disciplinary hearing. The Chairperson must be conversant with the requirements and steps for a fair procedure and with the rules of evidence.
  • Initiator and assistant – To argue or present the employer’s case against the alleged transgressor.
  • Alleged transgressor – (Accused/defendant)
  • Representative(s) – (shop steward or union official or fellow employee) representing the accused. Refer to clause 7.11.1
  • Human Resource representative – To advise the parties about the Procedure and to submit evidence about the disciplinary and personal record of the alleged transgressor.
  • Interpreter – At the commencement of hearing the Chairperson shall establish the necessity of an interpreter. The interpreter must be acceptable to all parties. Refer to clause 7.11.5
  • Secretary – A competent person to record or minute the proceedings.
  • Witnesses – May only be present when testifying.

 Recusal of the Chairperson

Provision is made that the Chairperson may be requested to recuse him or her from presiding in a disciplinary or appeal hearing. Refer to the Disciplinary Procedure Manual.



 Hearing in absentia

Provision is made that a disciplinary or appeal hearing may continue under certain circumstances in the absence of the alleged transgressor. Refer to the Disciplinary Procedure Manual.

 Withdrawal of the hearing

Provision is made that a disciplinary hearing may be withdrawn under certain circumstances. Refer to the Disciplinary Procedure Manual

 Withdrawal of charges or acquittal

Provision is made that charges against an alleged transgressor may be withdrawn, either before the alleged transgressor has pleaded or whilst the disciplinary hearing is in progress. Refer to the Disciplinary Procedure Manual.

 Rights of employees

The right to representation
Every employee has the right to be represented by a fellow employee, shop steward or union official of his or her choice. An affiliated employee, i.e. an employee who belongs to an employee organization admitted/recognized by DCS, is entitled to be represented by at most two (2) representatives (shop steward(s) and/or union officials) of his or her choice.

An unaffiliated employee, i.e. an employee who does not belong to an employee organisation, is entitled to be represented by only one representative (a fellow employee) of his or her choice.
A legal practitioner may not represent either the employer or the employee, unless the employee is a legal practitioner. For this purpose, a legal practitioner is defined as a person admitted to practice as an advocate or lawyer in South Africa.
An alleged transgressor may be represented by a fellow employee or shop steward from another Management Area/ within or outside his or her province under certain conditions. Refer to the Disciplinary Procedure Manual.

Right to be heard
The alleged transgressor has the right to state his or her side of the case and to submit evidence in his or her defence, or to remain silent.

The right to witnesses
The alleged transgressor has the right to call witnesses.

The right to cross-examination
The alleged transgressor and/or his or her representative and the Initiator have the right to be present when witnesses are called and have the right to question and cross-question witnesses regarding relevant matters. An alleged transgressor/representative and the Initiator have the right to re-examine their own witnesses after cross-examination.

The right to an Interpreter
An impartial fellow employee shall be used for this purpose. Refer to clause to 7.6.
The right to appeal A transgressor has the right to appeal against the verdict and/or sanction imposed during a disciplinary hearing. Refer to clause 7.16.

The pre-hearing phase

A pre-hearing meeting may take place between the Initiator and the representative of the alleged transgressor in an attempt to exchange information, clarify charges and any matter relevant to the disciplinary hearing and to eliminate aspects that may destruct the flow of the hearing.

The Disciplinary Hearing (Ensuring procedural fairness)

The following steps must be applied in complying with the Audi alterem partem-rule:
The chairperson with delegated authority must preside over the disciplinary hearing. At the commencement of the hearing the chair shall state the ground rules, read the charges and request the alleged transgressor to plead.

The Initiator shall lead evidence on behalf of the employer and argue the employer’s case. The alleged transgressor or his or her representative may question any witness introduced by the Initiator.

The alleged transgressor shall be given the opportunity to lead evidence, either by him or herself and/or through witnesses. The Initiator may question any witness the alleged transgressor may introduce.

The chair may ask witnesses questions for clarification only related to matters already raised.
After having heard both the Initiator and the alleged transgressor, the chair must come to a finding (guilty/not guilty) on the balance of probabilities and must inform the Initiator and alleged transgressor accordingly.

If the alleged transgressor was found guilty, and before imposing a sanction, the chair must afford the transgressor the opportunity to present evidence in mitigation. The Initiator may present aggravating circumstances and the chair must consider the presence of extenuating circumstances.

The chair must consider the evidence heard and come to a decision.
However, for a pro-forma model containing the steps aimed at ensuring a procedurally fair disciplinary hearing, refer to the Disciplinary Procedure Manual.

 Considering a verdict and suitable sanction (Ensuring substantive fairness)

The Chairperson must consider the requirements for substantive fairness. Refer to the evenly numbered clause in the Disciplinary Procedure Manual.

 Procedure for admission of guilt

Provision is made for a shortened procedure should the alleged transgressor indicate his intention to plead guilty. Refer to the Disciplinary Procedure Manual.

 Appeals

 Grounds for appeal

An employee has the right to appeal against the verdict and sanction imposed in a disciplinary hearing. The following general grounds of appeal may exist:

  • Substantive fairness – The allegation that the disciplinary measure is too strict in view of the circumstances.
  • The allegation that the chairperson of the hearing had been prejudiced.
  • The allegation that gross procedural errors occurred during the disciplinary hearing or that a fair procedure was not followed.

Should the employee wish to lead new evidence which was not available at the time of the hearing and the employee was not at fault in the failure to lead such evidence, or if the evidence could not reasonably be obtained by him or her.

 Application for appeal

NB. – If an employee lodges an appeal following his or her dismissal, he or she remains in service until the outcome of the appeal hearing.
If an employee does not exercise the right to appeal (dismissal cases) in terms of clause 7.11.6 the sanction become effective from the date upon which the sanction was handed down, (i.e. 30 days’ notice/30 days’ payment in lieu of notice/summary dismissal).
Provision is made for a procedure that an employee must follow when applying for an appeal. Refer to the Disciplinary Procedure Manual

 Persons involved in the appeal

  • Appeal Chairperson – a line manager of higher grade than the Chairperson of the disciplinary hearing to preside in the hearing;
  • Initiator and an assistant – Initiator of the (initial) disciplinary hearing will normally officiate in the appeal hearing to argue on behalf of the employer. The employer may appoint another Initiator if he or she so wishes;
  • Appellant – (employee who appeals);
  • Representative for the appellant – (Shop steward/union official/fellow employee);
  • Human Resource representative – to advise participants about the Procedure – not compulsory;
  • Interpreter – (if necessary);
  • Secretary – a competent person to record/minute the proceedings; and
  • Witnesses – to testify on behalf of the employer or appellant.

 

 The appeal procedure

At the commencement of the appeal hearing the chairperson must confirm the grounds for the appeal.
The appellant or representative must be given the opportunity to address the chair and motivate the grounds for appeal. Witnesses may be introduced. The initiator may question the witnesses of the appellant.
Following the evidence of the appellant, the initiator must be given the opportunity to address the chair and to argue on behalf of the employer in response to the evidence of the appellant. The initiator may introduce witnesses and the appellant or representative must be given the opportunity to question the witnesses of the Initiator.
The chair may ask witnesses questions for clarification.
After having heard both parties, the chairperson must:

  • In a non-dismissal case – come to a finding on the balance of probabilities and present his finding;
  • In a dismissal case – in the event of a not guilty verdict, acquit the appellant and adjourn the hearing; or
  • In a dismissal case – in the event of a recommendation of guilty, adjourn the hearing to forward a recommendation about a suitable verdict and sanction to the delegated authority for a decision.

However, for a pro-forma model containing the steps aimed at ensuring a procedurally fair appeal hearing, refer to the Disciplinary Procedure Manual.

 Recommendation to the delegated authority

For the procedure for making recommendations to the delegated authority, refer to the Disciplinary Code & Procedure Manual.

 Appeal sanctions

The delegated authority may impose one of the following sanctions:

  • Not guilty and set aside the verdict and sanction imposed in the disciplinary hearing;
  • Guilty and uphold the (initial) sanction imposed in the disciplinary hearing;
  • Guilty and award a less severe sanction; or
  • Guilty and award a more severe sanction. (If the appeal chairperson is of the opinion that the misconduct warrants the penalty of dismissal, he or she may not come to a decision, but must adjourn the hearing to forward a motivation to this effect to the delegated authority via the Legal and Labour Relations offices who must make an objective and independent recommendation to be considered by the delegated authority before coming to a decision); or
  • Order a complete re-hearing by a new impartial chairperson, only if found that the initial hearing contained gross procedural errors that were material to the employee’s dismissal, or on request of the appellant.