Notice of termination of a contract can be served by either the employer or by an employee. An employer would issue notice of termination of a contract where a contract is terminated for reasons of incapacity, operational requirements or misconduct. The employee would issue notice of termination of the contract for reasons of a resignation. It is often the case that whilst an employee is serving the notice period out, he/she becomes demotivated and disengaged and associated with this behaviour is very often some form of misconduct. This begs the question what should the stance of an employer be where the employee commits some form of misconduct during such a notice period.
Though it is unpleasant to have to initiate a disciplinary process against an employee who is serving notice, it is important that the employer maintain sound and consistent discipline amongst employees. To this end misconduct should and must be dealt with in a consequent and consistent manner irrespective of where the employee is in regard to his/her employment life cycle.
The rule to be adopted by the employer is that if the time remaining to be served by the employee on the notice period is adequate to allow a proper disciplinary procedure to be convened and completed, then it would be wise to proceed with the disciplinary process. One must consider that the requirements for a fair disciplinary procedure include inter alia:
- Giving the employee proper notification of the disciplinary hearing in writing;
- Affording the employee adequate time to prepare for the hearing. It would be rare to convene a disciplinary hearing in less than 48 hours from the date of the disciplinary notification having been issued to the employee;
- Making reasonable information/evidence to be relied by the initiator during the hearing available to the employee in advance of the hearing.
I recently had a situation in which retrenchment consultations had been completed and final notice of their retrenchments had been served on the employees. On their final day of work in a concerted, collective action most of the retrenched employees, in fact all of them with the exception of two, absented themselves from work. At approximately midday the employees started to arrive for work one at a time in 15 minute intervals, the last one arriving at work around 14h00. The employees worked in a critical area of the business on a critical contract which was ending on their last day of work but which required them to properly wrap up their work. The employer would not have had adequate time to satisfy the procedural requirements for a fair collective disciplinary hearing and so its response was to make the time spent away from work unpaid and to recalculate the wages to be paid to the employees, which was obviously some inconvenience to the employees. Had a similar incident occurred earlier during the notice period, perhaps a day or two into the 4 week notice period, the employer would then have had the option of pursuing a disciplinary hearing for absence without permission and/or notification with the appropriate level of warning being applied.