DID YOU KNOW: About the Deviation Provision

In the workplace, the employer must comply with terms and conditions around enforcing the Code of Conduct when conducting disciplinary proceedings against an employee. But how strict is this rule? Are there any loopholes if an employee has acted outside of their obligations to the business? Does this misconduct clash with labour regulations, and can employers deviate from disciplinary procedures in these cases?

The answer is yes. However, the circumstances are limited, which we further explain below.

The Code of Good Practice

The Good Practice code outlines that a disciplinary hearing is unnecessary if an employer can't be reasonably expected to hold a hearing. However, the Code does not explain the details surrounding this situation. It may be the case if an employee has abandoned their right to a hearing through threatening words or actions or behaved in a disruptive manner.

A Guilty Plea

If an employee pleads guilty, would they be required to undergo the entire hearing process? It should not be necessary as long as the employer is happy with the grounds of the employee understanding and taking responsibility for the allegations.

Substantial Compliance

Substantial compliance comes into play if an employer is accused of unfair accusations or a lack of compliance regarding the requirements of procedural fairness during a hearing. For instance, if the employer failed to put the allegations in writing, only communicating verbally, then the arbitrator can decide whether or not this makes the process unfair.

Mass Hearings

A good example of deviation from the disciplinary procedure is when more than one employee is found to breach the employment contract simultaneously. While employees, in this case, may argue that the hearing is deviating from the disciplinary code or the contract, adaptations regarding deviation are likely to occur as the likelihood of individual hearings is not sustainable. Treating a case like this as a mass offence is more likely and will call for deviation provision.

Employers with disciplinary codes should aim to adhere to the Ts&Cs outlined as much as possible. However, if a deviation occurs, there must be a solid explanation with hard evidence to back it up. All employers should prioritise ensuring a disciplinary code is in place. However, it is wise to make the code a separate document from the employee employment contracts.