Brown Pwai

Mr. Brown Pwai
Chief IR Officer.
Email: Brown.Pwai@commerce.gov.sb

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INDUSTRIAL RELATION


(Labour Act, Employment Act & Unfair Dismissal Act)

Section links

1.  Industrial Relation

2. Casual Employment

3. The Holidays, Sick Leave and Passages Rules.(Legal Notice(LN) 19)

4. Redundancy

5. Employment Act (Cap 72)

6. Dismissals And Disciplinary Procedures

7. Types of Dismissals

8. Six Hot Stove Rules

9. Discipline At Work - 10 Points of Discussions.

10. Natural Justice


1.  Industrial Relation

Guidelines Notes
  1. a) Number of Working Hours. Maximum number of hours per day is 9 hours Maximum number of hours per working week is 45 hours. A contract that states that working hours per week is 37.5hrs (e.g. Public Service workers) implies that the said week is statutory week. This is different from the working week stated in the labor Act.
  2. b) Overtime The number of hours that is allowable for overtime per week is 12 hours. Please check this out on section 13 or 14 of the Labour Act. Section 13 & 14 of Labour Act Days and hours of work 13.-
    1. (1) Subject to any lower maximum number of hours of employment applicable to him by virtue of any regulation, rules, contract or agreement negotiated on his behalf - 18 of 1979, s. 5
      1. the normal weekly hours of any worker shall not exceed forty-five hours;
      2. the normal daily hours of work of any worker in an industrial or agricultural undertaking shall not exceed nine hours;
      3. a worker whose hours of work exceed six hours daily shall be given a break of at least thirty minutes arranged so that the worker does not work continuously for more than five hours;
      4. hours of work and breaks from work shall be so arranged as not to require the worker's presence at the place of work for more than twelve hours daily;
      5. a worker shall be given a weekly rest of at least twenty-four continuous hours, which shall, where practicable, include Sundays or other customary rest days; and
      6. no worker shall be required to work on a gazetted public holiday or on more than six days in one week, unless such worker is employed in a service to which the Essential Services Act applies or in an occupation in which work on public holidays or customary rest days is expressly provided for in his contract of service.
Cap. 12
  1. (2) The above limits on hours of work may be exceeded in those processes which by reason of their nature are required to be carried on continuously by a succession of shifts, subject to the condition that the average working hours shall not exceed nine daily and forty-five weekly over a period of three weeks;
  2. (3) Workers engaged on shift work shall be given at least twenty-four continuous hours of rest weekly notwithstanding that the incidence of shift rotas may be such that this rest period does not coincide with the normal or customary weekly rest days.
  3. (4) In order to ensure continuity of operations an employer may require workers engaged on shift work to remain on duty until relieved by the succeeding shift or until permitted to leave by the supervisor responsible: Provided that such workers shall be paid at overtime rates for any additional hours so worked.
  4. (5) The limit on hours of work specified in this section may be exceeded subject to the total hours worked (including hours of overtime) not, without the approval of the Commissioner, exceeding fifty-seven hours in any work weekly or two hundred and twenty-eight hours in any calendar month.
  5. (6) The onus of showing the necessity to extend hours of work beyond those provided for in subsections (2) and (5) shall lie on the employer in any particular case and shall be subject to approval by the Commissioner.
  6. (7) Employers shall notify workers, by posting notices in conspicuous places in the work premises or other appropriate places or by such other method as may be approved, of the hours at which work begins and ends, including shift work, the rest intervals during the period of work which are not reckoned as part of the working hours, and the weekly rest period to be accorded to workers.
  7. (8) The Minister may be Order suspend the provisions of this section at any time when Solomon Islands is at war or when a declaration has been made under section 16 of the Constitution that a state of public emergency exists.
Overtime 14.-(1) An employer shall have the right to call upon his workers to undertake a reasonable amount of work in excess of the normal working hours to the extent specified in sub-sections (2), (4) and (5) of section 13. 18 of 1979, 5.5 (2) Workers other than those covered by subsection (3) undertaking such overtime work at the request of, and by prior agreement with their employer, shall be paid for such extra work at the following rates -
  1. for time worked in excess of the normal daily working hours established in the undertaking- at a rate of not less than one and a half times the regular hourly rate of pay;
  2.  on Saturdays and Sundays or other agreed rest days substituted therefor-at a rate of not less than one and a half times the hourly rate of pay;
  3. on gazetted public holidays - at a rate of not less than twice the regular hourly rate of pay.
(3) An employer and a worker may agree to the assignment of a task to be performed by the worker as being the equivalent of work for a day of nine hours and the performance of such task shall for the purposes of this Act, be equivalent to working for a day. (4) Nothing in this Part contained shall prevent any employer from agreeing with any worker in his employment that the wages of such worker shall be paid at an agreed rate in accordance with the amount of work done and not by the month or by the day. This means that for the 45 hours allowable per week, an additional 12 hours for OT can be implemented. This can make that number of hours of work (for both normal and OT) to 57 hours per week. Any OT hours in excess of 12 hours must be given approval by the Commissioner of labor. Overtime rates are: not less than 1.5 times from Monday to Sundays and not less than double for public holidays. Some people are confused stating that Saturdays and Sundays are double and triple respectively. This is not true. The Act only states the minimum for the over-time payments.
  • c) Wage Rate The minimum wage rate is $3.20 for Agriculture, plantation and Fisheries Sector and $ 4.00 minimum for other sectors. All wage rates per hour must no go below the ones specified above.
  • d) Compassionate Leave Not mention in the Acts. However, the common sense is giving 2 weeks to employee, or let them go on annual leave whilst visiting their sick relative or attending to the death of an immediate family or for any personal reasons.
  • e) Maternity Leave  Labour Act, Section 42 (1), “A female employee taking a maternity leave shall be entitled to up to 12 weeks for such leaves.  Such leaves shall be six weeks before confinement and a compulsory period of six weeks after the confinement period. The employer shall pay the employee the amount equivalent to 25% of the basic wages for the duration of the Maternity leave.  The female employee is entitled to two working hours of paid absences for the purpose of feeding her child”.  A female worker other than a casual worker.    Production of a medical certificate stating the anticipated date of her confinement. Any additional leave certified as necessary which exceeds the twelve weeks of maternity leave may be deducted from the annual leave or sick leave entitlement of the worker.
  • f) Natural Justice This is the connotation where workers or even employers must be given sufficient time to be heard. That is they must provide their side of the story before a decision can be made. E.g.: when a worker is terminated, this is seen as unfair since the worker has not submitted his side of the story. Stating the reasons why an alleged offence has been committed.
  • g) Procedural Fairness Procedural fairness means the rules of fair play and can be defined as:
    • Decision making must be fair and without biasness.
    • A person should not be judge in his own cause.
    • A person must be inform on the case against him.
    • All parties to the matter must be given opportunity to be given their case.
    • Relevant information must be considered before making any decisions.
    • All persons should be informed of the reasons of a decision that affects them.
  • h) Women in Employment. There is no discrimination in employment. All genders must have the same equal employment opportunities Women are not allowed to work in mines, except in the mines’ offices (see labor act) Women are paid the same rate and should be treated just the same as their male counterparts.
  • i) Disciplinary Procedures.
    • When terminating a worker, all employers must follow certain procedures. This can include verbal warning, written warning, and suspension, before termination. Some offences that are criminally related do not always require procedures. Worker can be instantly dismissed if they cause criminal offences e.g. Theft, causing bodily harm, etc.
    • Reasons must be substantiated.
    • Manner of dismissing an employee.
  • j) Employers' liability Insurance [section 20, Employment Act] All employers are obliged to cover their workers in an insurance against injuries arising out from the course of employment
  • k) Pay in Lieu of Notice Section 3 of the Labour Act which states “In default of any agreement to the contrary whether express or implied every contract of employment shall be deemed to be from month to month determinable by either party on one month's notice or by the payment of one month's wages in lieu of notice”.   The prevailing management style will have an important influence on the nature of employment relationship between employers and employees, which establishes patterns of expected behavior such as the extent to which employees are consulted on decisions and the culture of the workplace.
  •  

    2. Casual Employment

    What is Casual Employment?
     Under the Labour Act (Cap 73), a casual employee is “an employee or worker employed on a temporary or irregular basis at an hourly rate of wages payable at the end of each day or on completion of a task or piece of work specified at the time of engagement, which the task is capable of being completed in a shorter period that the normal working week or the statutory working week, whichever is lesser”.
    1. With regards to the definition quoted above is concerned, certain crucial aspects that should be revealed are;
    2. —  The engagement is irregular and/or temporary.
    3. —  Payment is either on hourly or daily rate basis.
    4. — Payment is to be made at the end of each day or on the completion of the task or piece of work.
    5. — The task or piece of work is capable to be completed in a shorter period than the normal working week or statutory working week.
    Key Aspects
    1. With regards to the definition quoted above is concerned, certain crucial aspects that should be revealed are;
    2. —  The engagement is irregular and/or temporary.
    3. —  Payment is either on hourly or daily rate basis.
    4. — Payment is to be made at the end of each day or on the completion of the task or piece of work.
    5. — The task or piece of work is capable to be completed in a shorter period than the normal working week or statutory working week.
    Explanation on ours of Work. The Act specifies that the normal working week not exceed 45 hours. The statutory working week referred to in the definition is the hours that are applicable to individual organizations but also note that they should not exceed the maximum of 45 hours allowed under the Act. One may also pose the question on what the minimum weekly hours should be for normal workers. This is stipulated in the Employment act Section 5 (a & b) which says; “Any week in which an employee is employed- For more than half of the normal weekly working hours for the business concerned (excluding overtimes). We may deduce from the above provision that the minimum working hours per week is from twenty- three hours per week with the maximum being 45 hours. An employee who works for more than half the weekly hours applicable to the business, from twenty- three hours or more has served what is usually referred to as “reckonable service”. By virtue of this period, he should now be entitled to conditions that are normally applicable to normal employees. In the event where he has been employed for six months or more, he should be entitled to redundancy payment if the purpose for his employment has ceased. Or on a more serious note, he may claim for unfair dismissal if he feels that there was no reason for his dismissal other than being informed that he is a casual employee. It is therefore suggested that should there be any need for workers on a short term basis; a fixed term contract must be entered into. Please note that fixed term contracts are not necessarily mandated only to periodical arrangements but may also be entered into for tasks that are anticipated to be completed in a given period. Should the period exceed six months, normal redundancy packages apply. A casual employee is “an employee or worker employed on a temporary or irregular basis at an hourly rate of wages payable at the end of each day or on completion of a task or piece of work specified at the time of engagement.
       

    3. The Holidays, Sick Leave and Passages Rules. (Legal Notice(LN) 19)

    By virtue of section 80 of the labor Act,
    the minister responsible for labor has the power to make rules for the further carrying out of the provisions and purposes of the labor Act. This rule was drafted, discussed among tripartite constituents, gone thru legal proceedings and viewing, deliberated in the Cabinet chambers and was gazetted and commenced on the 15th of March 1982, under the then Minister of employment, youth and Social Development, Late George Talasasa. This part implies that rules relating to holidays, sick leave and passages are made and implemented by the ministry and must be included in the employee’s contract of employment. Since the three particulars are not fully covered in detail under the labor Act 1981, the minister thru his assigned powers sighted the rules, thus one was enforced under legal notice No. 19. Interpretation “Home" means the village in Solomon Islands regarded in custom as the place of origin of the worker; "working days" excludes public holidays, Sundays or other customary rest days. The Holidays In this context, holiday means being absent from the workplace on the basis where the worker gets paid whilst enjoying his/her vacation at home or anywhere. For most of our workers, holiday always associated with home, which always means workers place of origin, or as some people always emphasizes, ‘ where the heart is’. The issue of home is always susceptible to the workers adaptability with his/her normal environment. Every worker is entitled to be given a holiday by his/her employer at a minimum rate of 1.25 working days for each calendar month. This may mean that the worker is entitled to be given 3 weeks (15 days excluding Sundays and Customary rest days, ie: Saturdays) for each complete calendar year. For those spending 4 weeks each calendar year, to be paid holiday by his/her employer and shall be paid in respect of such holiday at the rate normally applicable to him/her. Passages The employer shall decide the route and method of travel when on holiday. The day’s travels are not counted as holiday for a worker. They are traveling days. During such holidays, the employer will meet the return fare of the worker and his or her spouse and a maximum of 4 dependent unmarried children under the age of 18 years. Where the worker is still on holiday, he /she will still be paid on the rate normally paid to him/her. The place where the annual leave is to be spent shall be at the home of the worker. Where such leave is to be taken at the home of the worker’s spouse and if the cost is proved to be greater, the employer is only liable to pay for the cost normally paid to the worker’s home. The difference shall be borne by the worker. The Holidays In this context, holiday means being absent from the workplace on the basis where the worker gets paid whilst enjoying his/her vacation at home or anywhere. For most of our workers, holiday always associated with home, which always means workers place of origin, or as some people always emphasizes, ‘ where the heart is’. The issue of home is always susceptible to the workers adaptability with his/her normal environment. Every worker is entitled to be given a holiday by his/her employer at a minimum rate of 1.25 working days for each calendar month. This may mean that the worker is entitled to be given 3 weeks (15 days excluding Sundays and Customary rest days, ie: Saturdays) for each complete calendar year. For those spending 4 weeks each calendar year, to be paid holiday by his/her employer and shall be paid in respect of such holiday at the rate normally applicable to him/her. Sick Leave To be absent from work because of sickness, a worker must submit a medical report approved by a certified medical practitioner. On this condition, he can be granted permission by employer to be absent from work. The maximum period for payment by employer for such absentees shall not be more than 22 days. This is on the condition where the employee  ...’ has been continuously employed in an undertaking for a minimum of 26 weeks.’ This means that the prerequisite for such leave entitlement is working for more than 6 months. These Rules shall have the effect of including in the contract of employment of the workers.
     

    4. Redundancy

    The concept of redundancy is based on the idea that a person has a form of property right to their job.
    Like any other piece of property owned by a person, if it is taken away by someone else that person must pay compensation. Redundancy is a situation when the job an employee does is no longer required by the employer. Technically it is the job that is redundant or not needed and the compensation is paid to the current holder of the job. Redundancy is a fair reason for dismissal. The purpose of redundancy pay is to compensate a worker for loss of job, irrespective of whether that loss leads to unemployment. It is to compensate for loss of security, possible loss of earnings and fringe benefits and the uncertainty and anxiety of a change job. Why Redundancy?
    1. Business/Company closes.
    2. Firm no longer needs employees.
    3. Requirements of that business for employees to carry out work of a particular kind have ceased or diminished.
    4. Encourage workers to leave one type of work for another job in an expanding sector.
    5. Discourage overstaffing and to minimize the industrial relations difficulties that can ensure when people are made redundant.
    Right to Redundancy payment
    1. The redundancy payment is the compensation the employer pays to the employee for the loss of job sustained by reason of redundancy.
    2. Employees dismissed by employers.
    3. Dismissal is because of redundancy.
    4. Employee has been continuously employed for a period of twenty – six weeks or more ending with the date of dismissal.
    All those employees working under a contract of employment
     

    5. Employment Act (Cap 72),

    Part II: Redundancy Payments.
    Exclusion of right to redundancy payment. An employee who is dismissed because of redundancy is not entitled to a redundancy payment if:
    1. Person over the age of fifty years.
    2. Person is dismissed in circumstances in which his employer is entitled to terminate his contract without notice by reason of the employee's conduct.
    3. Before the ending of his employment under the previous contract, the employer has made him an offer in writing to renew his contract, or to re-engage him under a new contractwhere the terms and conditions of his employment under the new or renewed contract would differ from the terms and conditions under the previous contract, the offer specifies the differences and is an offer of suitable employment for the employee.
    4.  the renewal or re-engagement would take place not more than four weeks after the ending of his employment under the previous contract.
    5. the employee unreasonably refuses the offer.
    Procedure for redundancy exercise
    • The procedure of redundancy is that (a) 28 days notice served to the Commissioner of Labour. The notice must expire on the date in which the employer will inform the workers of their redundancy (b) an approval must be served by the Commissioner of labor before any redundancy exercise.
    • Payments in the redundancy exercise include:
    (a) notice pay if a notice is not served. (b) redundancy payment. (c) repatriation. (d) holiday pay. (e) any other payments owed to the employee. Example of Redundancy Calculation Amount of redundancy payment.    PE x 1/26 x BW
    • Where;
    "PE" is the number of weeks for in the period of employment. "BW" is the basic weekly wage for the employment on the date of the dismissal to which the redundancy payment relates. Example: Commenced employment; 1/01/1978.
    • Redundancy effective; 14.01.1982.
    • Basic weekly pay; $25.00
    • PE = 210 weeks, BW = $25.00. Payment = PE x 1/26 x BW:
    • = 210 x 1/26 x $25.
    • = $201.92
    Qualifying weeks are.
    • More than half the normal weekly working hours of business excluding overtime or more than 23 hours.
    • Maternity leave taken.
    • Sick leave or absent through injury.
    • Normal holidays and absences from work which do not break the contracts.
    Take note, the total number of employees affected by the redundancy exercises in the past 3.5 years [2008 –June, 2011] amount to 5,780. In directly, these employees have lost their jobs and just imagine how many lives are depending on them for food, school fees, shelter and other basic needs. Therefore, raised queries as to what are the strategies put in place by the national government to cater for those losing their employment.
     

    6. Dismissals And Disciplinary Procedures

    (The Unfair Dismissal Act)
    1. One of the shortest Acts but the most used and the most broken.
    2. This Act upholds the right of every employee not to be unfairly dismissed by his employer.
    3. Defines dismissal if and only if the contract under which he is employed is terminated by the employer (by notice or otherwise), or upon the expiry of a fixed term contract without being renewed under the same contract, or the employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer’s conduct, the employee is entitled to terminate it without notice.Fair and Unfair Dismissal Section 4 (a),(b) An employee who is dismissed is not unfairly dismissed if- a. he is dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position; and b. the employer has acted reasonably in treating that reason as sufficient for dismissing the employee.
     

    7. Types of Dismissals

    FOR THE PURPOSES OF THIS SUBJECT THERE ARE 4.
    1. CONSTRUCTIVE DISMISSAL (Forced resignation due to employer’s conduct)
    2. UNLAWFUL DISMISSAL (Claim under Section 10 of the Trade Disputes Act)
    3.  WRONGFUL DISMISSAL (Claim under a fixed term contract, PER Halsbury’s Laws of England where dismissal is in breach of the relevant provision in the COE relating to the expiration of the term for which the employee is engaged)
    4. UNFAIR DISMISSAL (Claims under Section 6 of the Unfair Dismissal Act).
     

    8. Six Hot Stove Rules

    1. Discipline must be immediate
    2. Discipline must be reasonable with the nature of the offence
    3. Discipline must be consistent over time
    4. Discipline must be consistent across the hierarchy
    5. Discipline must occur in a warm atmosphere
    6. Discipline must act as a deterrent
     

    9. Discipline At Work - 10 Points of Discussion

    Discipline At Work Points
    1. CHECK LIST FOR HANDLING DISCIPLINARY MATTERS
    2. THE NEED FOR RULES AND DISCIPLINARY PROCEDURES
    3. HANDLING A DISCIPLINARY MATTER
    4. COUNSELLING
    5. HOLDING A DISCIPLINARY INTERVIEW
    6. DECIDING AND IMPLEMENTING DISCIPLINARY ACTION
    7. HOLDING AN APPEAL
    8. PARTICULAR CASES
    9. ABSENCE
    10. SUB STANDARD WORK
    9.1 - Checklist Natural justice to prevail
    • Gather all the relevant facts promptly, take statements & documents, and in serious cases, suspension with pay during investigation
    • Be Clear about the complaint to see whether action is needed at this stage
    • If so, decide whether the action should be counselling or formal disciplinary action
    • If formal action required, arrange a disciplinary interview – ensure individual is aware of the nature of the complaint and that the interview is a disciplinary one, where and when interview is to take place and of the right to be accompanied, second member of management to be present
    • Start by introducing those present and the purpose of the interview, the nature of the complaint and the supporting evidence
    • Allow the individual to state his/her case and consider and question any explanations put forward,
    • If new facts emerge, decide whether further investigation is required and if it is, adjourn the interview and reconvene when investigation is completed,
    • Except in very straightforward cases, call an adjournment before reaching a decision after coming to a clear view of the facts, and if disputed, decide on the balance of probability what version of the facts is true.
    • Before deciding penalty, consider the gravity of the offence, and whether procedures gives guidance for such offences, the penalty applied must be consistent to similar cases in the past, consider the individual’s disciplinary record and general service and mitigating circumstances and whether the proposed penalty is reasonable in all the circumstances.
    • Reconvene to disciplinary interview to clearly inform the individual of the decision and the penalty, if any, explain the right of appeal and how it operates, and in the case of a warning, explain what improvement is expected, how long the warning will last and what the consequences of failure to improve may be
    • Record the actions taken and if other than oral warning, confirm the disciplinary action to the individual in writing, keep a simple record of the actions taken for future reference
    • Monitor the individual’s performance due to the reason that disciplinary actions should be followed up with the object of encouraging improvements and monitor progress regularly and discuss it with the individual
    9.2 - Rules And Disciplinary Procedures
    • rules are necessary because they set standards
    • a good disciplinary procedure helps employees to comply and employers to deal fairly with those who do not
    • rules should cover issues such as absence, health and safety, misconduct, substandard performances, use of company facilities, timekeeping, and holiday arrangements
    • rules should be clear and in writing and should be known and understood by all employees
    • employees should have access to a copy of the rules and procedures
    • management should aim to secure the involvement of employees and any recognized trade union or other employee representatives when disciplinary procedures are introduced or revised
    • management should ensure that those responsible for operating disciplinary rules understand them and receive appropriate training
    • how rules should be drawn up and communicated
    • should be written down to ensure that employees know what is required of them and to avoid misunderstanding
    • care must be taken to avoid discrimination and that they must be applied irrespective of sex, marital status, racial groupings, or disability
    • readily available and managers to take reasonable steps to ensure that all employees knows and understand them
    • new employees should be guided on the procedures and be given copies of these procedures and rules
    • young people with limited experience and those who knows either little or no English should be granted special attention
    • where rule has fallen into disuse or has not been applied consistently, employees should always be told before there is any change in practice, and they should be issued with a revised written statement within a reasonable time, say one month
    9.3 - Handling a Disciplinary Matter
    • remember that disciplinary action essentially is intended to encourage an unsatisfactory employee to improve
    • handle the matter promptly and gather all the relevant facts
    • be firm, it is the manager’s responsibility to maintain satisfactory standards
    • consider suspension with pay (unless contract says otherwise) while case is investigated especially cases involving serious misconducts
    • stay calm, be objective, fair and consistent
    • consider each case on its merits and avoid snap decisions made in the heat of the moment. judgment is impaired during high emotions
    • follow the disciplinary procedure
    • question if disciplinary action is necessary. this can be done after all facts have been gathered where it is now possible to question whether disciplinary action is necessary, to arrange for counselling, or arrange for a disciplinary interview or drop the matter altogether.
    9.4 - Counselling - What Is It?
    • in many cases, the right word at the right time and in the right way may be all that is needed and will often be a more satisfactory method in dealing with a breach of discipline than a formal interview
    • This is done through discussing matter s out of hearing of others, must be a two way discussion, dissecting out shortcomings in conduct or performance and encouraging improvements. criticisms should be constructive, and the emphasis should be on finding ways in which the employee can remedy any shortcomings
    • Listen to any explanation put forward by the employee. if it becomes evident that there is no case to answer this should be made clear to the employee
    • Where an improvement is required make sure that the employee understands what needs to be done, how performance or conduct will be reviewed, and over what period. the employee should be told that if there is no improvement the next stage will be the formal disciplinary procedure
    • Take care that the counselling interview does not turn into a formal disciplinary hearing as this may unintentionally deny the employee certain rights, such as the right to be accompanied. if during the meeting it becomes obvious that the matter is more serious, the discussion should be adjourned. it should be made clear that the matter will be pursued under formal disciplinary procedure
    • Keep brief notes of any counselling for reference purposes. It should not be confused with action taken under formal disciplinary procedure.
    9.5 - Holding A Disciplinary Interview
    • prepare carefully and ensure you have all the facts
    • tell the employee of the complaint, the procedure to be followed, and that he is required to attend a disciplinary interview
    • tell the employee that he is entitled to be accompanied
    • Special circumstances to be taken into account? (Personal, outside matters affecting conduct or performance?)
    • special care for informants who request anonymity, corroborative evidence, written statements, informant is genuine in providing information)
    • Are standards of other employees acceptable or is this employee singled out?
    • anticipate explanations from employee and if possible, check them out before hand
    • Allow employee ample time to prepare his or her case. in complex cases, it is useful and save time at the interview if copies of any relevant papers are given to the employee in advance
    • holding an interview cont’d
    • if employee is a trade union official, ensure no disciplinary action beyond an oral warning is taken until the circumstances of the case has been discussed with the trade union representative or full time official. this is because the action may be seen as an attack on the union’s function
    • place of interview must be comfortable – no interruptions
    • personal details, disciplinary records, current warnings, written statements from witnesses must be at hand
    • establish what disciplinary actions was taken in similar cases in the past
    • second member of management at hand to take notes
    • witnesses must be at hand unless employee accepts statements to be statements of facts
    • witnesses outside of the company should provide written statements if they are prepared to attend
    • language difficulties should be dealt with through a friend who can assist
    • Prepare how interview is to be structured and make notes of points to be covered.
    • problems during interview and how to handle them
    • second member of the management must be present
    • employee must also be accompanied
    • emotionally distressed employees must be granted time to compose
    • if employee continues to be distressed, adjourn
    • Letting off steam may be inevitable. this is a good sign and helpful to find out and understanding precisely what happened
    • If gross misconduct – for example abusive language or threatening physical violence is encountered, then this is already misconduct. Adjourn and treat the incident as additional complaints against the employee. consider suspending the employee with pay (or otherwise) to allow time for him to calm down and to allow for a full investigation
    9.6 - Deciding And Implementing Disciplinary Action
    • Before deciding whether a disciplinary penalty is appropriate consider the employee’s disciplinary and general record, whether the disciplinary procedure points to the likely penalty, action taken in previous cases, any explanations and circumstances to be considered and whether the penalty is reasonable
    • Dismissal for gross misconduct without warnings or notice should only be for very serious offences (examples of which should be specified in the rules) and should only occur after normal disciplinary investigation and interview
    • Leave the employee in no doubt as to the nature of the disciplinary penalty, the improvement expected and the method of appeal
    • Except in the event of an oral warning, give the employee written details of any disciplinary action
    • Keep records of disciplinary action secure and confidential
    • Do not normally allow disciplinary action to count against an employee indefinitely
    • imposing the disciplinary penalty
    • in the case of minor offences, the individual should be given a formal oral warning and told that a note that it was given will be kept for reference purposes
    • in the case of more serious offences or where there is an accumulation of minor offences the individual should be given a formal written warning
    • if the employee has received a previous warning, further misconduct may warrant a final written warning or consideration of a disciplinary penalty short of dismissal 9including disciplinary transfer, disciplinary suspension without pay, demotion, loss of seniority, or loss of increment, provided these are allowed for by an express or implied term in the c.o.o
    • They may be occasions when misconduct is considered not to be so serious as to justify dismissal but serious enough to warrant only one written warning which will be both the first and final.
    • a final written warning should contain a statement that any further misconduct will lead to dismissal
    • if all previous stages have been observed, the final step will be dismissal
    Point to consider
    • Dismissal should only be the final resort to take and taken only if, despite warnings, conduct or performance does not improve. It must be reasonable in all the circumstances of the case.
    9.7 - Holding An Appeal
    • provide for appeals to be dealt with speedily
    • wherever possible, use procedure which is separate from the general grievance procedure
    • wherever possible, provide for the appeal to be heard by an authority higher than that taking the disciplinary action
    • pay particular attention to any new evidence introduced at the hearing and allow the employee to comment on it
    • examine all the issues fully and do not be afraid to overturn wrong decisions
    9.8 - Particular Cases
    • FOR UNION OFFICIALS consider how disciplinary matters should be handled when management and union reps are not immediately available,
    • in normal circumstances, take no disciplinary actions, beyond an oral warning. against a trade union official until the case has been discussed with a senior trade union official of the full time official,
    • IN CRIMINAL CASES, do not discipline an employee merely because he or she has been charged with or convicted of a criminal offence
    • Decide whether the employee’s conduct affects ability or suitability for continued employment. if it does, use normal disciplinary rules. if it does not, decide whether in light of the needs of the business, the employee’s job can be kept open throughout the period of absence
    • base any decision on a reasonable belief following a reasonable investigation into the circumstances of the case
    • Where a criminal charge has been made do not defer taking fair and reasonable action, if appropriate, merely because the outcome of the prosecution is not yet known.
    9.9 - Absence
    • before action is taken to dismiss an employee who is absent from work always carry out a full investigation into the reasons for the absence
    • give the employee an opportunity to state his or her case and that he/she be accompanied
    • issue warnings and give time for improvement where appropriate
    • consider whether suitable alternative employment is available act reasonably in all the circumstances.
    • always remember that some absences are work related – be very, very, careful.
    • failure to return from extended leave on agreed date
    • there are no statutory right to such leave without pay and whether it is granted is a matter for agreement between employer and employee.
    • where a policy exist, the following points should be borne in mind
    – should apply to all irrespective of sex, marital status, racial group, or disability – conditions should be explained to employee and employee’s signature must be secured – employees failing to return on agreed date should be treated as any other failures and should be investigated in the normal way as fully as possible – foreign medical certificates should not be treated in a discriminatory way – prior to dismissing an employee who overstays leave, the employee’s age, length of service, reliability record and any explanation given should all be taken into account An agreement that an employee should return to work on a particular date will  not prevent a complaint of unfair dismissal to the trade disputes panel if an employee is dismissed for failing to return as agreed. in such cases all the factors mentioned above and the need to act reasonably should be borne in mind before any dismissal action is taken.
    • when employment begins, the standards of work required, the consequences of the failure to meet them and conditions attaching to any probationary period should be fully explained
    • where warnings are in operation, an employee should be given both time to improve and, where appropriate, training
    • the availability of suitable alternative work should be considered before dismissal action is taken
    • any deductions from pay must comply with the provision of the labour act, cap 73.
    • with the above, it is vital to prepare your company for employees through
    – Setting standards of performance – Training and supervision – Establish Appraisal systems – Motivation techniques – Systems for dealing with poor performance – Necessary actions in serious cases for substandard work.

    10. Natural Justice

    • Natural Justice upholds that decision makers must act fairly, in good faith and without bias and must afford each party the opportunity to adequately state his case. This is based upon two rules:
    • That no man must be condemned without being heard
    • That no man must be a judge in his own cause. This upholds the principle of conflict of interest.