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The Role of HR in Discipline

 The Role of HR in Discipline

NUMSA Obo Daniels / DCD Marine (2009) 18 MEIBC 7.1.21
A health and safety officer was dismissed for various charges relating to abuse/misuse of his employer’s internet and e-mail system. The commissioner found him guilty of wasting time surfing the net, downloading pornographic material and sending personal e-mails.

The commissioner noted that the company had clear rules regarding the use of its internet system which the applicant was aware of. He had also neglected his duties as a health and safety officer by spending the time he had on the internet and on private communications. The commissioner found that dismissal was an appropriate penalty.

However, when it came to the applicant’s claim of procedural fairness, the commissioner noted that the internal appeal had been chaired by the HR Manager. While the HR Manager had not been involved in the initial disciplinary enquiry, it was common cause that she had been involved in the investigation prior to the enquiry.

Her appointment to chair the appeal was in breach of the company’s disciplinary procedure and created a perception of bias. The applicant was awarded compensation equivalent to a month’s salary.

There are lessons to be learned from this case.

Butt of jokes
Having been an HR Manager and worked as a consultant advising clients on HR matters for most of my life, I often come across businesses where the HR department is the butt of jokes. Why is this, even when the individuals concerned may be very competent and likeable?

What is even more interesting is that as a consultant, you can give managers advice which they will readily accept but were their HR manager to give them the very same advice, they will be skeptical of it. Of course, much of this goes back to the Biblical saying “A prophet has no honour in his own land.”

Part of the problem is that HR is a support function and far too many managers simply do not know how to make best use of support functions. For example, even today, there are managers who think that the HR Department should be responsible for conducting disciplinary enquiries.

Power
If you want to disempower line management, the quickest way to do this is take away their power to discipline employees. Discipline is a line management responsibility. It simply cannot be delegated, especially to HR.

Many years ago one of the motor companies had a practice where disciplinary enquiries and grievance hearings were chaired by members of their HR Department. The company ended up with anarchy on the shopfloor, followed by a series of debilitating strikes. The situation only settled after a number of employees were dismissed and a new disciplinary procedure was introduced whereby line managers were required to chair hearings with HR playing an advisory role in the process.

Sapential leadership

Dr Arnold Mol in his excellent book, Creating Winners in the Workplace talks about sapiential leadership:

This is an uncommon word (it comes from supiens, the Latin work for ‘wise’), but it best describes the leadership that stems from someone’s superior knowledge, skills or in insight. A management consultant, for example, may be a sapiential leader. He doesn’t exercise any kind of authority over his clients, yet is looked up to as ‘a leader’.The same is true for a doctor, a lecturer, a spiritual leader, a counselor, and so on. These people are considered to be the experts in a particular field and others are willing to ‘follow’ them because of their expertise.The purpose of sapiential leadership is to get things done right by teaching or demonstrating how problems should be solved. It involves giving advice from the side, rather than instructions from above. The sapiential leader gives others insight into the correct way of dealing with specific situations and / or problems. The focus is on increasing the knowledge and understanding of individuals. The sapiential leader’s basic message is: ‘Believe me!’ If he does not have credibility, he will be an ineffective leader.
Source: Creating Winners in the Workplace by Dr Arnold Mol

The role of the HR manager
The role of the HR manager in a business is a difficult one. People are wary of HR people because the HR department has access to personal information about them. They know their salaries, they see their performance reviews, they know when they have been disciplined and they usually have some input when promotions are considered. This is unfortunately a part of the job which the HR Manager has to accept.

HR Managers can however improve their credibility by proving sapiential leadership, particularly when it comes to disciplinary matters. For example, HR should be pro-active in implementing sound, up to date policies and procedures and making sure that they are implemented consistently within the organisation. HR should also be pro-active in monitoring absenteeism and identifying troubled employees. These cases should be brought to the attention of management who should be encouraged to take appropriate steps in the corrective process. The emphasis should be on avoiding dismissals by ‘dealing with small things when they are still small’.

HR people need to keep up to date on case law and be experts in disciplinary matters. Making bad decisions or giving wrong advice will severely damage credibility. Therefore the HR managers should also not be afraid to take advice themselves before giving advice to others.

Where there is serious misconduct, HR should provide advice and support to line managers during the investigation phase and especially when a decision is taken to institute formal disciplinary proceedings. HR can also assist a line manager with case preparation but all this should be done ‘behind the scenes’.

Under no circumstances should HR people be seen to be actively involved in the case against the employee. They should also not chair enquiries or appeals, other than for their direct reports.

HR should be the change agents within the organisation helping management to create a better workplace. They can never hope to achieve that if they are perceived by employees to be the ‘hit squad’ responsible for having people dismissed.

What do you do when an employee refuses an instruction?
Common law requires employees to carry out the instructions of their employer and in addition to that, most employment contracts include a clause to the effect that:

“The Employee shall notwithstanding the above job title, be obliged to carry out any lawful instruction given to him / her by the Employer even though this may not be related to his / her position.”

In other words, as long as the instruction is lawful, the employee is contractually bound to carry it out. Failure to do so constitutes insubordination and can result in summary dismissal (i.e. dismissal without notice or notice pay).

It might look straightforward but unfortunately these situations often go awry for employers, especially when managers become angry.

Calling the boss an idiot found not to be grounds for dismissal
For example, a number of years ago in a well reported case, a General Manager was dismissed for insubordination after he had called his new Managing Director an idiot. It transpired that the Managing Director had wanted to retrench employees immediately, without following the required LRA procedure.

The GM had refused to carry out the instruction, calling his boss ‘an idiot’ in a heated discussion. This ultimately led to the GM being dismissed for insubordination and him referring his case to the Industrial Court. The Court found the dismissal to have been unfair and awarded compensation. In its judgement, the Court inferred that the MD’s conduct had indeed been idiotic because the he had expected the GM to carry out an unlawful instruction.

Similarly, a manager may not expect an employee to carry out a task which would expose him or her to danger not normally connected with the performance of his / her duties or which could result in the employee facing disciplinary or criminal charges.

The difference between insubordination and insolence
The Oxford dictionary defines insubordinate as ‘disobedient; rebellious’. Insubordination must be distinguished from insolence which is defined as ‘offensively contemptuous or arrogant; insulting’. While insolence may well result in dismissal, it is not considered as serious as insubordination. This is because insubordination goes to the root of the employment relationship. The employer pays the employee to carry out instructions. If the employee refuses the whole employment relationship breaks down.

‘It’s not my job’ is no excuse but look for the underlying cause
Refusals to carry out instructions because ‘it’s not my job’ usually stem from employees being misinformed or misled by others, especially in the lead up to strikes. Employees may also refuse to carry out instructions if they feel that they are being singled out unfairly or are being overloaded with work. There is usually a lot of underlying emotion involved in these situations and it is advisable therefore to treat these situations sensitively.

Employee’s point of view
From an employee’s point of view, if you feel aggrieved by an instruction, rather than put yourself at risk, comply with the instruction as best you can and then lodge a grievance. DO NOT REFUSE to carry out the instruction, no matter how right you think you are, as it could cost you your job.

From the employer’s or manager’s point of view, these are really ‘no-win’ situations so they need to be handled carefully.

GUIDELINES FOR HANDLING A REFUSAL TO CARRY OUT AN INSTRUCTION:

1. Explain why the task is necessary and give the employee the instruction in a clear and unambiguous manner e.g. “I am giving you a lawful instruction to ……………….”
2. If the employee refuses, ask why? Listen to understand – not to respond.
3. If there is no good reason for the refusal, explain that refusal to carry out the instruction is a serious breach of the employee’s contract of employment.
4. Explain the consequences of continuing to refuse to obey the instruction: e.g. “Your refusal / failure to obey this instruction constitutes a serious disciplinary offence and will result in a disciplinary enquiry which COULD lead to your dismissal.”
5. Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a cooling off period for the employee to reconsider his / her actions.
6. Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If the employee refuses to sign, call a witness, read out the instruction and ask the witness to sign.
7. If the employee has not carried out the instruction by the set time limit, suspend the employee from work and tell him / her to report to you the following morning. This will allow a further ‘cooling off period’ for the employee to consider the consequences of failing to carry out the instruction.>
8. The next day establish whether the employee has changed their mind. If so, issue the employee with a written warning (which may be a final warning depending on the circumstances). Allow the employee to go back to work but make sure that the employee actually carries out the instruction.
9. If the employee still refuses to carry out the instruction, issue the employee with a notice of a disciplinary enquiry and suspend the employee from work. The charge will be Insubordination – failing to carry out a lawful instruction in that you ……. (Details of the instruction). The suspension must be on full pay and the employee must be given at least 24 hours’ notice of the enquiry (48 hours is preferable).

If a process like this is followed and the instruction is lawful and reasonable, the employee will have only himself to blame for his dismissal. In the event of the employee contesting the dismissal, it can be easily justified by the employer.