1. DIRECTORATE: LABOUR LAW
Presentation on Misconduct Management

2. OBJECTIVES
To ensure fair and just management of misconduct and incapacity: poor performance at UNISA.
To enhance and maintain sound working relationships in a consultative, informed and fair manner.

3. MISSION
Complaints received from employees and managers are handled promptly and effectively
Provide training and guidance relating to Labour Law, Misconduct and Poor performance matters

4. PURPOSE OF THE PRESENTATION
To discuss the:
The Unisa Employee Disciplinary Code;
Complaint procedures;
Disciplinary procedures;
Categories of misconduct; and
Sick leave administration.

5. PURPOSE & OBJECTIVE OF THE DISCIPLINARY CODE
The Unisa Employee Disciplinary Code provides and clarifies the content and consequences of misconduct and ensures the efficient and fair application of discipline.
In order to achieve this, it imperative that Managers are equipped to deal with misconduct

6. LEGISLATION ON CODES LRA on disciplinary codes
The LRA provides the employer with guidelines as to the manner in which discipline should be conducted.
It provides that:
There should be an investigation to determine whether there was misconduct;
It need not be a formal enquiry;

7. Cont...
The employee must be notified of the allegations in a form and language reasonably understandable to the employee;
The employee should be allowed to state a case in response to the allegations;
The employee should be allowed a reasonable time to prepare the response to the allegations and to the assistance of a representative in the form of a fellow employee or trade union representative;

8. Cont...
After the enquiry, the employer must communicate the decision to the employee, preferably in writing.
If the employee is dismissed, reasons for the dismissal should be given and the employee reminded of his/her right to appeal or to refer the matter to the CCMA.
In exceptional circumstances, where the employer cannot reasonably be expected to comply with these guidelines, the employer may do away with the pre-dismissal procedures.

9. Cont..
Disciplinary regulations and agreements should endorse the concept of corrective and progressive discipline.
This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.
Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.

10. DIFFERENCE BETWEEN MISCONDUCT, GRIEVANCE AND POOR PERFOMANCE
Definitions:
MISCONDUCT: occurs when an employee has acted contrary to required standards.
GRIEVANCE: means dissatisfaction regarding an official act or omission by the employer which adversely affects an employee in the employment relationship.
POOR PERFORMANCE: Is the inability of employee to meet standards of quality and quantity in the execution of his/her duties.

11. GENERAL PRINCIPLES OF DISCIPLINE
Discipline is management function
Discipline is corrective measure not punitive
Discipline does not emulate court proceedings
Disciplinary actions may be instituted informally or formally (disciplinary hearing)
Discipline must be efficient and as fair as possible
In order to be efficient, discipline must be arrived at promptly
Employees are entitled to be represented if disciplinary proceedings are instituted against them.

12. LIST OF MISCONDUCT Absenteeism Reporting late for duty/absconding
Abusive or offensive language
Assault
Fighting
Violence
Intimidation
Competing with the employer
Damage to property
Deliberate laying of false charges or complaints against another employee
Racial discrimination

13. LIST OF MISCONDUCT Cnt... Disclosing confidential information
Dishonesty
Plagiarism
Use of drugs
Drunkenness on duty
Insolence
Insubordination
Negligence in performing duties
Sleeping on duty
Breach of policies and procedures
Entry into a restricted area
Sexual harassment in the workplace

14. REPORTING AND INVESTIGATING MISCONDUCT
Any alleged misconduct must be reported in writing to the Directorate: Labour Law on the prescribed form determined by the directorate.
The purpose of investigating alleged misconduct is to determine: whether sufficient evidence exists to support a charge of misconduct and if so,

15. Cont... At what level disciplinary action should be initiated
Whether alternative steps may be recommended, prior to initiating disciplinary action.

16. COMPLAINT FORM COMPLAINT FORM
(NOTE: WITH THIS FORM YOU INSTITUTE A DISCIPLINARY INVESTIGATION AND POSSIBLE DISCIPLINARY ACTION AGAINST THE RESPONDENT(S) IN TERMS OF THE EMPLOYEE DISCIPLINARY CODE, AVAILABLE ON THE STAFF WEBSITE UNDER POLICIES OF HUMAN RESOURCES. IF YOU WISH TO RATHER LODGE A GRIEVANCE, KINDLY CONSULT UNISA’s GRIEVANCE PROCEDURE ON the UNISA WEBSITE
FURTHERMORE NOTE: IF YOU ARE NOT CONVERSANT IN THE ENGLISH LANGUAGE, KINDLY REQUEST A FELLOW EMPLOYEE OR YOUR UNION TO ASSIST YOU WITH COMPLETING THE FORM. BE ADIVISED THAT THE LEGAL SERVICES OFFICES CANNOT COMPLETE THE FORM ON YOUR BEHALF AS THIS WOULD BE IRREGULAR)
DETAILS OF THE COMPLAINANT
(the person(s) complaining)
Name: __________________________________________________________________________
Surname: __________________________________________________________________________
Title: Prof/Dr/Mr/Ms/Adv/Rev (please encircle the correct title)
Sex: M F Department: __________________________________________________________________________
Position: __________________________________________________________________________
Line Manager: _________________________________________________________________________
Race (for statistical purposes): Black White Coloured Indian Asian Other (Please Specify) Contact Details: Office Number: _________________________
Building: __________________________
Campus: __________________________
Tel Number: Office (0__) ________________
Cellular ___________________
Address: ___________________________

17. DETAILS OF THE RESPONDENT
(the employee(s) complained against)
Name: _________________________________________________________________________
Surname: _________________________________________________________________________
Title: Prof/Dr/Mr/Ms/Adv/Rev (please encircle the correct title)
Sex: M F Department: __________________________________________________________________________
Personnel Number: _____________________________________________________________________
Position: ___________________________________________________________________________
Line Manager: _________________________________________________________________________
Race (for statistical purposes): Black White Coloured Indian Asian Other (Please Specify) Contact Details: Office Number: ____________________
Building: _____________________
Campus: _____________________
Tel Number: Office (0__) ___________
Cell: _________________
Address: _____________________

18. DETAILS OF THE COMPLAINT
Date of Incident: _______________________________________________________________________
Place: ________________________________________________________________________
Campus: ________________________________________________________________________
Office (if applicable): _________________
WHAT WAS THE ALLEGED MISCONDUCT ? (you may tick more than one):
Absence from work
State Date(s) and time: _______________________
Reporting Late for duty
State Date(s) and Time ________________________
Absconsion State Dates and Time: _________________________
Abusive/Offensive Language
Assault

19. Fighting
Intimidation
Competing with the Employer
Damage to Property
Disclosing Confidential Information
Dishonesty

20. Plagiarism:
Use of Drugs
Drunkenness on Duty
Insolence
Insubordination
Negligence in Performance of Duties
Sleeping on Duty

21. Breach of Policies and Procedures (Attach copy of policy/procedures)
Entry into Restricted Area
Sexual Harassment
Laying of False Charges/Complaints
Racial Discrimination
Other (Please specify) ____________________________________________
Provide a statement of the events of the alleged misconduct: attach all relevant documentation, including policies, statements, affidavits, etc. You may also use additional paper for purposes of your statement.
(KINDLY NOTE: THIS DOCUMENT MIGHT BE FORWARDED TO THE RESPONDENT(S) FOR HIS/HER/THEIR RESPONSE. THEREFORE, YOU ARE ADVISED TO REFRAIN FROM MAKING DEFAMATORY AND/OR UNTRUE AND/OR OFFENSIVE STATEMENTS AS THIS MIGHT EXPOSE YOU TO DISCIPLINARY ACTION AND/OR CIVIL AND/OR CRIMINAL LITIGATION)

22. Have you taken any steps/processes regarding the incident
Have you taken any steps/processes regarding the incident? No Yes (if yes, specify) _______________________________________________________________________ __________________________________________________________________
Did the Respondent(s) lay a grievance against you? No Yes (If yes, shortly describe the nature of the grievance): ______________________________________________________________________________________________________________________________________________________________________________________________________
How would you like this matter to be dealt with by the Legal Services Offices: Disciplinary and Incapacity Enforcement?
___________________________________________________________________________________________________________________________________

23. Declaration by Complainant:
I,____________________________, declare that the information reflected in this Complaint is to the best of my knowledge true unless stated otherwise and that I am fully aware of the consequences of laying false charges and/or making false allegations when knowing that the allegations are false.
THUS SIGNED ON THIS ________ DAY OF _________ 20____ AT____________
____________
COMPLAINANT
TAKE NOTE: YOU ALSO NEED THE SIGNATURE OF YOUR EXECUTIVE DIRECTOR BEFORE SUBMITTING YOUR COMPLAINT (UNLESS YOUR EXECUTIVE DIRECTOR IS THE RESPONDENT IN YOUR COMPLAINT)

24. Declaration by Executive Director: I, ______________________________, the Executive Director of _______________________ declare that all internal procedures in order to resolve this complaint have been exhausted and therefore I give permission that this Complaint may be forwarded to the Legal Services Offices for further investigation. THUS SIGNED ON THIS ________ DAY OF _________ 20____ AT____________ ___________________ EXECUTIVE DIRECTOR PLEASE NOTE: Kindly scan the Complaint Form along with all supporting documents and forward same to entering in the subject line of your the words ‘New Complaint’ or hand deliver same to Mr Tshifhiwa Sididzha at Office nr 11-6, Legal Services Office, 11th Floor, OR Tambo Building, Muckleneuk Campus, Telephone Number (012) for the attention of Mr Martin Labuschagne, Manager: Disciplinary and Incapacity Enforcement. Be advised that all consultations or interviews are by appointment only.

25. Guideline for Managers when dealing with less serious misconduct
The following serves as a guideline before a decision is taken to institute informal discipline:
Substantive fairness
was there a breach of a work related rule?
was the rule valid or reasonable?
was the employee aware of the rule / or could he / she be expected to have been aware of the rule?
has the rule been consistently applied?
what damage and what degree of damage has there been to the employer?
what opportunity has been given to the employee to improve?

26. Cont... Procedural fairness
Notify the employee about the misconduct e.g. ( late coming)
Employee must be given opportunity to make his representation
Give an employee a copy of employee disciplinary code to familiarize himself with it.
Record all the meetings and make the employee sign (this assist when it escalate to a serious form)
Inform the employee that if the late coming persist in terms of disciplinary code he/she will be subjected to a disciplinary hearing and more severe sanction may be instituted.
If the conduct persist report it for pre formal disciplinary action.

27. GUIDELINE cont...
NB: Line manager is only entitled to issue a verbal warning to an employee, which verbal warning may be recorded in writing.  This is in line with our current Employee Disciplinary Code.
Any other sanction like written warning and final written warning must be issued in terms of the formal disciplinary process provided for in the UNISA employee disciplinary code( clause 7), in terms of which the employee is confronted with the allegation(s) and allowed an opportunity to respond thereto. 
Any misconduct that you as a manager view as serious and warrants a sanction other than verbal warning, the matter must be reported to Directorate: Labour Law.

28. ROLE OF MANAGERS IN DISCIPLINE
Manager must ensure that all their subordinates have a copy of EDC and they all understand the contents thereof.
Managers must record all misconduct and actions taken in regard thereto in the form of a report to ensure that when the case is ultimately reported to the Directorate, all relevant information and supporting documentation are provided to assist the Directorate to prove the alleged misconduct such as clocking reports, statements, instructions, medical certificates, verbal warnings recorded in writing etc.

29. Cont...
Manager must hold regular sessions with their staff to re-emphasize the importance of adhering to the EDC.
Managers must forward a list of attendance of such sessions to Directorate: Labour Law for record purposes and this may be used as evidence when employees misconduct themselves i.e. that they were sensitised on EDC on a regular basis so they ought to know the types of misconduct and repercussions thereof.
Every directorate has policies that guides it in executing their services. It is imperative that a line manager ensures that their staff understand the contents of these policies and adhere to these at all times when executing their duties.

30. CONCLUSION

33. SPECEFIC OFFENCES INSUBORDINATION
The deliberate (wilful) refusal to obey a reasonable and lawful instruction; or
Conduct on the part of an employee that poses a deliberate (wilful) and serious challenge or resistance to, or defiance of, the employer’s authority.
A single act of insubordination will not by itself justify dismissal where it does not appear that the employee intended thereby to repudiate the contract employment.

34. Cont..
The characteristics present in insubordination may be a wilful, verbal refusal of instructions, wilful disregard of management authority, disrespect, rudeness, rebelliousness or disobedient gestures, manner or attitude, dismissive gestures, walking away, abusive language, knocking the written instruction or notification of enquiry from the manager's hand, or taking it and discarding it, addressing the senior manager or director or supervisor in a disrespectful manner.

35. REASONABLE INSTRUCTION
The employee must have the necessary knowledge, skill, capability and ability to carry out the instruction. Instructing an employee to do something which he clearly cannot do is unfair and unreasonable. Don't tell the junior clerk in the accounts dept to carry out a full year-end audit because you want to save on auditor's fees.
Don't tell your Nanny to repair the refrigerator. If you were to instruct an employee to do something that he/she is clearly not certified to do or not qualified to do, the instruction is not only unreasonable but also unlawful.
The instruction must always fall within the parameters of the Job description.

36. HOW TO DEAL WITH REFUSAL
If an employee refuses to obey a lawful instruction, this should be brought to the employee's attention, the employee placed on terms to adhere to the instruction. If the employee still refuses to adhere to the instruction, he should be called in and allowed an opportunity to provide reasons as to why he refuses to adhere to the instruction. If no good and justifiable reasons are advanced, the manager should issue a verbal warning that his continued unreasonable refusal may lead to disciplinary action. This verbal warning should be recorded in writing and kept by the manager for record purposes.
If the refusal of reasonable instructions persists, depending of course of the seriousness and extent thereof, the matter should be reported to the LSO on the prescribed complaint form for consideration of formal disciplinary action.

37. SICK LEAVE ADMINISTRATION
INTRODUCTION
Unisa’s existence is based on three core business areas i.e. teaching; research and community engagement. Unisa is a comprehensive, open distance learning institution that produces excellent scholarship and research, provides quality tuition and fosters active community engagement.

38. INTRODUCTION cont...
It is guided by principles of lifelong learning, student centeredness, innovation and creativity, whereby the efforts contribute to the knowledge and information society, advance development, nurture a critical citizenry and ensure global sustainability. If the service provided by Unisa is interrupted by constant sick leave, the core functions of the institution will be severely affected.
Sick leave also has a financial effect on the institution and affects the morale of staff.

39. BACKGROUND
The abuse of sick leave in Unisa is widespread and a number of employees have been disciplined as a result of this conduct. Such abuse is the result of unethical behaviour on the part of employees, and sometimes medical practitioners too.
The Health Professions Council of South Africa recently confirmed the conviction of a medical practitioner who had sold fake medical certificates for around R50 per certificate.

40. BACKGROUND cont..
The South African Chamber of Commerce estimates that sickness absence directly costs South Africa R12 billion per year.
Following the large extent of Unisa sick leave abuse, there is a need to address this challenge through both proactive and reactive measures.

41. Cont....
Unisa management is equally concerned with this scourge and has noted that there seems to be a lack of supervision and control and the staff who do arrive for work would obviously be taking a lot of strain.

42. OBLIGATION
The employer is obliged to pay for sick leave when the employee is genuinely sick and cannot work because of incapacity due to ill health or injury. However if an employee is not ill enough not to work and does not report for work, then disciplinary action can be taken against such an employee or absence without leave must be given to such employee.

43. Cont...
In some circumstances, having a meeting with the employee and informing him or her that you are aware of the pattern of absence, and you are watching him or her may deter the employee from abusing sick leave.

44. HOW TO IDENTIFY PATTERNS OF SICK LEAVE ABUSE
Detecting sick leave abuse should not be difficult. However, careful and due consideration must be given to each case on an individual basis. What may be presumed to be abuse in another employee may be genuine use of sick leave for another employee. There are cases that can be identified as clear case of abuse, namely:
Making false claims of sick leave for medical appointments or treatment that never happened;
Providing false or altered medical certificates or reports to cover absence;
An employee’s absenteeism is usually accompanied by sick leave abuse, poor performance and poor timekeeping.

45. SIGNS AND PATTERNS OF SICK LEAVE ABUSE
Suspicious request for sick leave which coincide with a day when an employee was denied an application for annual leave;
The day an employee was supposed to work an unwanted shift;
A day that extends a holiday or weekend;

46. Cont....
Certain days of sick leave e.g. Mondays and Fridays or before and/or after public holidays
Established patterns of frequency of sick leave e.g. week, month, fortnight or always 3 days;
Change of doctors with different diagnoses on the medical certificates, the so called “doctor hopping”. The list is not exhaustive

47. RECORDING SICK LEAVE AND SICK LEAVE BENEFITS
All sick leaves should be recorded. An employee is entitled to 68 working days for three year cycle paid sick leave.
Half salary- 68 working days, these days may be converted to 34 working days on full pay in exceptional cases only and with the approval of the Human Resource Executive; no salary- 68 working days.
Any unused sick leave will lapse when the new sick leave cycle starts.

48. ACCEPTANCE OF A MEDICAL CERTIFICATE
An employee can obtain a medical certificate that does not identify his/her illness while she/he has sick leave to his/her credit.
Once the sick leave is exhausted the provisions of temporary incapacity will apply.
In the event of abuse (e.g. pattern of regular sick leave on Mondays or Fridays) managers and supervisors must request a medical certificate describing the nature and extent of the illness before granting sick leave with full pay.

49. Cont...
The following criteria must be met before a manger or supervisor accepts a medical certificate:
The name, address and qualification of the medical practitioner,
The name of the patient,
The date of examination,
If the patient has given informed consent for it to be disclosed, a description of the nature and extent of the illness/injury in lay mans terms,

50. Cont...
Whether the patient is totally indisposed for duty or whether the patient will be able to perform less strenuous duties at work,
The exact period of recommended sick leave,
The date of issue of the certificate,
The medical certificate cannot be issued in retrospect,
If the practitioner or person uses pre-printed medical certificate wording not applicable to the patient, must be deleted.

51. Cont....
The medical certificate must specifically say that the medical practitioner examined the patient and declared him/her unfit to work as a result of the observation and not that he was informed by the patient of his/her unfitness to work.

52. Cont...
It is the duty of the managers to manage absenteeism. Therefore the medical certificate has to meet these set criteria. Should the certificate not meet the criteria as set out or a pattern of abuse be established, the supervisor must refer the medical certificate back to the practitioner.

53. Cont.....
The practitioner must then either correct the errors or may be asked to depose in an affidavit to the legitimacy of the medical certificate. Should the employee fail to rectify the situation within 5 working days after being asked to correct the medical certificate or to hand in an affidavit from the practitioner deposing to the legitimacy of the medical certificate, the supervisor may invoke disciplinary steps against the employee.

54. RECOMMENDED ACTION
Managers and supervisors must take appropriate disciplinary action against employees who abuse sick leave through the following:
When an employee has been identified as an abuser of sick leave by virtue of manifesting one or more of the patterns listed above, then his or her sick leave applications must be treated with suspicion.
Medical certificate submitted by the identified abuser should be dealt with in the following manner:

55. Cont...
If the medical certificate is made on a pre-printed doctor’s form and is vague, the manager or supervisor has the right to ask for further particulars from the doctor to explain in more detail that the employee is indeed incapacitated to the extent that he or she will be unable to work for a specified and certain period.
Managers should not ask for disclosure of the patient’s diagnosis as this is privileged information which may only be availed with the consent of the employee. It must, however, be made clear that in cases of temporary incapacity leave, the employee is required to disclose the nature of his or her illness, falling which his or her application will be summarily disapproved

56. Cont....
The applying employee should be directed to request his or her doctor to depose to an affidavit in relation to the incapacity of the employee
If the doctor refuses to depose to such an affidavit, then the employee’s absence should be treated as leave of absence without pay (and should be charged with misconduct for such absence)

57. Cont....
If a medical practitioner truly believes that the employee is indisposed, then he or she should have no problem in deposing to an affidavit regarding the patient’s state of health.
The aforesaid are extreme remedies that should only be utilised for the identified sick leave “abuser” and should not be applied for normal or all applications of sick leave.

58. Cont...
The implementation of these measures is aimed at discouraging both the abusers and medical practitioners who collude with the abusers from granting employees medical certificates even when they are not sick.

59. Cont....
This will in turn deter the abusive utilisation of sick leave provisions and thus mitigate on the prevalence of such undesirable practice.
Managers and supervisors must take note of the fact that the worst strategy to deal with sick leave abuse is to ignore it hoping that it will correct itself without their intervention.

60. It needs to be clear to managers that the disciplinary enquiry must be used as a last resort to correct the behaviour of employees and must not be arbitrarily applied.

61. The continued existence of the University as an employer is dependent on proper operations which in turn is partially dependent on the proper management of employee conduct.
In order to enable our Directorate to service managers in Unisa sufficiently, we need your cooperation in dealing with misconduct in the correct manner by ensuring that the rules and standards of conduct expected of employees are made clear to them; that these rules are reasonable and consistently applied; that a fair internal procedure is followed, that all instances and actions taken are recorded in writing and that serious and / or repeated misconduct are reported to us timeoulsy.