This write up is the last of 2 instalments on this subject. The intention is to demonstrate the correct way of framing workplace offences. Incorrect framing of offences can result in the employee being charged on a case that he/she did not commit and either the Hearing Committee (HC) dismissing the case or applying an incorrect sentence on the employee. Where the sentence meted out is lighter to the designated one, it becomes unfair to employees who would have been correctly sentenced in the past for a similar offence defeating the purpose of fair discipline.
Conversely it would be unfair to the employee to be given a heavier sentence than that which is applicable to the offence he/she had committed because the supervisor charged him/her with a wrong offence. For an example a case of “Refusing to obey an instruction” is a more serious offence carrying a heavier sentence than that of “Failing to carry out an instruction” whose sentence is lighter.
In the first instalment we gave an example of a Labour Court case judgement number LC/H/186/2004 in which a Judge ordered the reinstatement of an employee who had been charged and dismissed from employment for failing to report an accident instead of negligence. The confusion in selecting the correct offence in this court case is an example of why it is important for supervisors to enter in the Complaint Form (CF) the correct offence and hence the purpose of this and the first article.
In the first article we covered the following offences; Negligence, Carelessness, Failing to carry out an instruction, Theft from employer, Disobeying a lawful order, Refusing to obey an order, and Bad time keeping. We now turn to other offences in this article.
Sabotage, employees who do not see their grievances resolved can turn to damaging organisation’s equipment or other assets in a clandestine manner. In this case an employee can loosen bolts or nuts on factory machine so that it becomes inoperable after use for a short time or can drain oil from an engine and cause it to seize. Sabotage is any deliberate action that an employee undertakes to cause damage to an asset so that production is interrupted.
The writer contends that an employee who utters words discouraging a contractor working for his/her organisation or fellow employees to continue with emergency works as an example can be charged with sabotage. In most cases of sabotage, investigations to determine the offender and conclude the event can be cumbersome requiring an inquisitive mind and attention to detail by the human resource practitioner (HRP). Installed cameras in the factory or dedicated employees whose aim is meeting their organisation’s planned production levels can assist in revealing the culprit.
The experience of the writer in cases of this nature is that “culprits are usually loose with their tongue” not knowing that they are selling themselves out on the matter to any of an organisation’s employees in the process.
Threatening violence, the employee will utter words that threaten the peace at the workplace usually directed at a supervisor but at times at colleagues, junior staff to him/her or other more senior officials. Immediate supervisors, security or safety officers wanting to enforce rules are more prone to such violence than other employees.
Words used for example are; “I will beat you”, “I will kill you” “I will burn down the building” and “you will get a good beating outside the premises after the shift”. An employee cannot be charged with threatening violence by using abusive language such as “stupid” or “foolish.
The exact words that were uttered must be captured for the case to succeed at a hearing. Witnesses are needed, the complainant’s word on its own without a witness to support the charge will not suffice.
Sleeping on duty, an employee must be found actually sleeping when he/she is supposed to be working. A witness and preferably more than one may be necessary to find the employee guilty. Where it is possible to collect or lift off an employee’s item such as a button stick or a cap from a sleeping security guard can support the case.
Where it is difficult to prove this type of case the HRP should educate supervisors not to proceed with submitting a Complaint Form (CF) against an employee because the case may be dismissed at a hearing for lack of evidence.
Unsatisfactory work performance, this is when an employee has the skill, materials, and equipment to carry out a task in the agreed time table but fails to meet the desired standard. Unsatisfactory work performance can result from failing to meet the quantity or product quality, an example is that of a requirement to assemble 10 by 2 litre kettles in 1 hour but the employee manages only 7 kettles and among them are 2 by 3 litre ones which were not part of the instructions.
This type of case is not difficult to obtain the needed information on the matter because the evidence is there to see or observe. However, it is only when an employee is persistently failing to meet the standard should a CF be raised. A once off failure to meet the set standard should be compared to previous performance record before charging an employee with unsatisfactory work performance.
It is advisable always to investigate the cause of the failure before an employee can be charged. The question to ask is whether there is any unforeseen circumstance that laid the employee to fail to meet the requirements of his/her job.
Absenteeism, employees agree with the employer which days they will be required to work and when they do not report for work on those days without obtaining permission from their superiors, they will be deemed to be absent from work unless they can produce an authentic note from a medical practitioner indicating that they had been given time off on their illness.
Other reasonable causes that management should not consider an employee absent are; being subpoenaed to a court of law as a witness, attending a registered trade union meeting in the industry in which he/she represents, detainment by police for questioning or compassionate grounds including the death of a wife or child. Section 14 B of the Labour Act (LA) 28:01 allows these grounds of absence as special leave.
In charging an employee using Statutory Instrument (SI) 15 of 2006, supervisors can be educated to find the correct sub section in Section 4 of this SI where any of the offences we have described in the 2 instalments falls.
We shall cover offences that we have not made reference to in the 2 instalments such as fighting on duty fraud, misrepresentations, forgery and alterations among others in future write ups.
It is the responsibility of an HRP to educate managerial officials in framing offences correctly to speed up the disciplinary process and to ensure fair justice to staff charged with misconduct is maintained.
The writer is a Past President of both the Zimbabwe Institute of Management (ZIM) and the Institute of People Management of Zimbabwe (IPMZ). He writes in his personal capacity.
Kingfrey Chizema MIPMZ. Hon FZIM
