Disciplinary procedure -jdes


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Learning Resource in Disciplinary Procedure from Jayadeva de Silva

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Disciplinary procedure -jdes

  1. 1. 08/10/13 Ayubowan Jayadeva de Silva. M,Sc,FIPM,FITD
  2. 2. ©
  3. 3. © 2006 Thomson-Wadsworth
  4. 4. ©Jayadeva de Silva The Purpose of Employee Discipline Employee Discipline A tool used by managers to improve poor performance and enforce appropriate behavior to ensure a productive and safe workplace.
  5. 5. Discipline Principles Discipline Preventive Corrective Positive Negative Progressive Sandwich Counseling Hot Stove Rule Contingencies Victimization False allegations Biased No Inquiry Natural Justice ' Malice
  6. 6. © humantalents Organizational Policy and Procedure Importance of a written disciplinary policy and procedure Protects manager and organization Guarantees rights of employee Teaches manager how to discipline employees
  7. 7. © Jdes
  8. 8. Disciplinary Procedure Jayadeva de Silva
  9. 9. © jdes Organizational Policy and Procedure – Components Procedure - usually has a minimum of 4 steps: Verbal warning Written warning Suspension Termination
  10. 10. Purpose  to have a disciplined work force Strict adherence  to gain the confidence of employees towards the disciplinary procedure Disciplinary Procedure
  11. 11. Why indiscipline? Ignorance of rules Physical/ mental incapability Absence of proper training Discontented workmen Misguidance by Trade Union leaders Absence of standard policies of handling discipline Uncongenial working conditions
  12. 12. Indiscipline requiring action Absenteeism Habitual Late coming Overstaying leave Disobeying rules/ standing orders Insubordination Misappropriation of funds or valuables Misconduct
  13. 13. Preliminary Investigation Show cause / charge sheet Receipt of explanation Domestic Inquiry Findings of the Inquiry Report Punishments Subsequent Actions after Termination Labour Tribunal Appeal against the decision of the L.T. Steps
  14. 14. Preliminary Investigation
  15. 15. 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
  16. 16. 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
  17. 17. Jdes
  18. 18. A place without disturbances A reliable person to take down in clear handwriting No erasing/tipp-ex Start with mentioning place date & time In direct speech Continuation of the pages and page numbering Conclusion Recording statements
  19. 19. Recording statements with fresh memories before influences Identifying witnesses Facts for better decision to hold an inquiry or not Facilititate in preparing counts in show cause Advantages of holding a Preliminary Inquiry
  20. 20. Outcome of the Prelim. Invest. Prima facie case Separate counts for each misconduct Start of the letter Reply before when (sufficient notice0 State action if no reply receives (ex-parte inquiry) Show cause / charge sheet
  21. 21. 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
  22. 22. 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
  23. 23. Advantages of holding a domestic inquiry  Respect 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
  24. 24.  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
  25. 25. 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
  26. 26. 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
  27. 27. What is balance of probability? MADHU.T.K
  28. 28. 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
  29. 29. 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
  30. 30. 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
  31. 31. Prosecuting Officer Prosecuting/inquiring together Defense  Silent observer  Defending officer Fellow worker Branch union official Parent union Official Outsider/not a lawyer Other Roles
  32. 32. 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
  33. 33. Important Points MADHU.T.K
  34. 34. ©
  35. 35. Charge Sheet Memorandum of charges Statement of allegations of misconduct/ omission/ negligence No particular format prescribed for charge sheet in any Labour enactment The object is to give the employee exact idea of the misconduct committed by him so that he may get reasonable opportunity to defend.
  36. 36. Requisites of Charge sheet It should contain complete picture of misconduct It 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
  37. 37. Be specific Charges 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.
  38. 38. Service of Charge sheet As stated in the Standing Orders Serve the charge sheet personally against signature on the duplicate copy/ delivery book If absent/ on leave/ under suspension, paste it on the wall of the residence of the delinquent By Registered Post Displaying in the Notice Board of the company Publishing in the regional newspaper
  39. 39. Domestic Enquiry Follow rules laid down in Standing Orders Purpose 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
  40. 40. Notice of Enquiry to be served Notice to show the Date and Time of enquiry Venue of holding enquiry Name of the Enquiry Officer Notice to be served in the same manner as followed to serve charge sheet Workman shall have right to appoint a Defense Helper When legally trained person represents management in enquiry, workman shall also be allowed to be represented by lawyer (Hindustan Teleprinters Ltd Vs Mr. Rajan Isaac.)
  41. 41. Recording the Evidences Question- Answer pattern may be followed Statement of Management to be taken first Cross examination by employee/ helper Take signature of the concerned on record Examine and cross examine witnesses Object/ Disallow irrelevant questions
  42. 42. Show Cause Notice Before 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
  43. 43. Order of Punishment Principles of natural justice to be followed Order issued without holding a domestic enquiry or after holding a defective enquiry will not stand since Labour Court/ Tribunal can interfere with such order
  44. 44. Some Sample letters MADHU.T.K
  45. 45. Jdes
  46. 46. © 2006 Thomson-Wadsworth
  47. 47. Charge sheet- absenting without intimation To 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
  48. 48. Charge sheet- misbehavior To ------- 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
  49. 49. 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
  50. 50. 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 representative The 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 witness Statement/ questions and answers Signature of witness Signature of charge sheeted employee with a declaration that the statement has been recorded in his presence Signature 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
  51. 51. 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
  52. 52. Termination Order To 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
  53. 53. Jdes
  54. 54. Disciplinary decisions are challenged through the Industrial Disputes Act No. 43 of 1950. MADHU.T.K
  55. 55. 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”
  56. 56. 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
  57. 57. MADHU.T.K
  58. 58.  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.
  59. 59. MADHU.T.K
  60. 60. K
  61. 61. Question? Why do we need a Disciplinary Procedure for an organization? MADHU.T.K
  62. 62. 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.
  63. 63. 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.
  64. 64. © Conclusion Employee 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.
  65. 65. © Conclusion The usual steps in a disciplinary procedure include the following disciplinary actions: Verbal warning Written warning Suspension Termination
  66. 66. © Conclusion Managers must use judgment, empathy, consistency, and fairness when administering employee discipline. All disciplinary actions should be documented in a factual, nonjudgmental way.
  67. 67. djayadeva@gmail.com Jayadeva de Silva