Eleven keys for a good institutional disciplinary process

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Why disciplinary actions?

Every institution or company requires disciplined and dedicated employees to attain its vision. In this regard, the conduct and attitude of all employees of the said institution should conform to appropriate norms and standards of behaviour which are contained in the policy document governing the conduct of employees.

Generally, employers must be guided by the following principles in implementing disciplinary procedures for their institutions:

  • disciplinary action must be targetted at the offence, and not the offender or employee.
  • all disciplinary and grievance issues must be handled with fairness.
  • disciplinary action must be progressive except in cases involving major or serious offences which warrant dismissal.
  • an employee must be given feedback on the outcome of disciplinary or grievance proceedings involving him or her.
  • employees must have a fair opportunity to appeal when they are not satisfied with a disciplinary decision.

Can employers discipline their employees?

Yes, the Labour Act, 2003 (Act 651) (Labour Law) sets out employers’ right to discipline their employees. Employees also have a duty to subject themselves to the disciplinary powers of their employers.

 In Kobea and Others v Tema Oil Refinery & Ors [2003-2004] 2 SCGLR 1033, the Supreme Court established the basis for disciplinary action against an employee as follows:

“… at common law, an employer may dismiss an employee for many reasons such as misconduct, substantial negligence, dishonesty, etc. These acts may be said to constitute such a breach of duty by the employee as to preclude satisfactory continuance of the contract of employment as repudiated by the employee.

What is the legal basis to discipline employees? 

Employers cannot discipline their employees for an act or an omission that was not an offence or misconduct at the time it was done. This is derived from the general rules of a fair trial under Article 19(11) of the 1992 Constitution. As such, no employee must be held liable for an offence unless the offence is defined, and the punishment for it is prescribed in a written law/document, or the offence is deemed proscribed by implication. Thus, employers are required under Section 9(e) of the Labour Law to provide and ensure the operation of an adequate procedure to discipline their employees.

There may also be some implied terms in the employment relationship between employer and employee which may create punishable offences not expressly stated in any policy document. However, the implied terms may be subject to dispute because they are not written. Thus, to minimise disputes, it is better to have a policy document on disciplinary issues. The policy document must not state only the offences, but it must also outline the procedures to be followed in disciplinary matters. Examples of such policy documents are the Employees Handbook, Human Resource Policy, Collective Bargaining Agreement (CBA), Contract of Employment, Conditions of Service, Code of Conduct for Staff, and Disciplinary Code/Rules of Procedure, among others.

The Supreme Court held in Coleman and Another vs. Newmont Ghana Gold and Others [2021], GHASC 14 per Honyenuga, JSC as follows: “…Moreover, it is trite that once an employer followed the procedures as enshrined in the contract of employment such as the CBA and followed the mandatory requirements as the hearing under the CBA, it gives a summary dismissal a validity.  In Opare Yeboah v Barclays Bank Ltd. [2011] 1 SCGLR 330 at 332, this Court stated as follows: – “That the Supreme Court would affirm the time-honoured proposition that the procedures outlined in contracts of employment such as the CBA in the instant case must be followed to give a summary dismissal validity”.

Thus, it is important that all employers put in place an adequate disciplinary mechanism in their institutions.

What structures must employers put in place to discipline their employees? 

There must be a well-established or laid out complaints procedure on how alleged misconduct or breach of code of conduct/contract should be handled. Employers can decide to use any of these three complaints procedures.

  1. One-way process

This involves an Investigative or Disciplinary Committee/Board, which is constituted to handle all disciplinary issues in the institution. All investigations and disciplinary proceedings are carried out by the same committee. There is no internal appeal procedure in the institution.

  1. Two-stage disciplinary process

This is a two-in-one complaints procedure. The first stage is an investigative proceeding/hearing, during which a committee is constituted to conduct preliminary investigations into an allegation of misconduct against an employee. When there are sufficient facts and evidence (prima facie case) of misconduct made against an employee, then the second stage of the complaints procedure is triggered. If no prima facie case is made against the said employee, then he or she is discharged from the alleged offence. The second stage of this process, which is the disciplinary proceedings, is initiated after the investigative proceedings. At this stage, the merits of the employer’s case and the employee’s defence are heard and evaluated by a Disciplinary Committee. In some institutions, there may be different Disciplinary Committees for senior staff and junior staff. The employer does not make provisions for any internal appeal procedure.

  1. Three-stage disciplinary process

This is a three-in-one complaints procedure. This involves the investigative proceedings and disciplinary proceedings as described earlier. In addition to the two processes, there is also an appeal proceeding under this complaints procedure. Thus, an employee who is dissatisfied with the outcome of the two-stage disciplinary process can appeal to an Appeals Committee of the institution. The three-stage disciplinary process is, therefore, made of investigative proceedings, disciplinary proceedings, and appeal proceedings.

The three-stage process may be considered the ideal disciplinary process for an institution to adopt. However, no matter the complaints procedure that an institution adopts for its disciplinary process, it must be fair. The more processes one goes through generally, the more likely the system may be seen to be fair. The caveat here is that more processes make it more costly and the likelihood of making mistakes. Thus, employers must consult professionals to help their institutions design their disciplinary complaint procedures. It is advisable to have a disciplinary process in place before a disciplinary incident.

What should the employer do when an employee breaches the code of conduct or commits misconduct?

  • There must be a formal complaint of the alleged misconduct.
  • Depending on the institution, the one-way, two-stage or three-stage process may be used.
  • Set up the appropriate committee(s) to investigate alleged misconduct. The composition of the Investigative Committee must be different from Disciplinary Committee in the two-stage process. An investigative proceeding is necessary to establish a prima facie case against the offender to avoid commencing frivolous or unnecessary disciplinary proceedings. However, if an employer is seized with sufficient evidence to charge the employee, then there is no need for investigative proceedings.
  • Receive the reports, findings and recommendations prepared by the Investigative Committee (May be binding or not depending on the law).

What should the employer do with an Investigative Report?

The employer should charge the employee if a prima facie case has been established in the said report. If there is no prima facie case, then the employer must truncate the disciplinary process. The employer may use a ‘charge sheet’ or letter to trigger the disciplinary process as provided in the law/contract or policy document. A ‘charge letter’ is a letter laying out clearly what the employee has done and the particulars. This is to afford the employee the opportunity to know exactly what he is alleged to have done, and to enable him to adequately prepare his defence.

What must be the content of a properly drafted ‘charge letter’?

Charge letter

In Labour Law, there is really no difference between a ‘charge letter’ and a ‘charge sheet’. In fact, there is nothing called a ‘charge sheet’. A ‘charge sheet’ has been adopted from Criminal Law to ensure a fair process. Thus, a ‘charge sheet’ or letter must mirror the principles in a ‘charge sheet’ in Criminal Law to give the employee adequate information to defend himself.

It must contain the following:

  • Charges: Count of offences
  • Statement of offence: This is the law, rule, code or policy the employee is alleged to have breached.
  • Particulars of offence: This portion must contain the details or allegations of facts in support of the charges levelled against the employee.

What should an employer do with a ‘charge letter’?

a. Delivery of charge letter

The letter must be delivered personally to the employee at his office or known address or through his official email. The letter must be accompanied by documents substantiating the charges and a list of witnesses the employer intends to call at the hearing (if any).

b. Invitations to disciplinary proceedings

The invitation must contain the place, venue and time. It must also state the right of the employee to appear with witnesses. The invitation must further furnish the employee with the rules of procedure of the institution’s Disciplinary Committee (if any). The Court of Appeal has held in Shafawu Musah vs Aviation Handling Services (Gh) Ltd. (Civil Appeal No. H1/50/2019 )6th February, 2020] that an employee does not have an automatic right to appear with a lawyer at a disciplinary hearing. As such, failure, or refusal to attend the disciplinary hearing with a lawyer is not fatal.

c. Response to charges from employee

The employer must give the employee reasonable notice and time to prepare and provide a written or oral response to the charges if he or she opts to do so.

What must the employer do during disciplinary proceedings?

The applicable law and procedure may differ depending on whether the institution is public or private. However, all Disciplinary Committees or Administrative Tribunals must apply the general rules of fair hearing and due process. Generally, the following may be a guide to the employer: laws on administrative tribunals or persons, constitutional provisions, rules of fair hearing and disciplinary policy documents. Employers may out-source disciplinary proceedings to third-party professionals.

a. The process

A disciplinary committee hearing is just like an informal courtroom trial. Firstly, the members of the Disciplinary Committee are introduced to the accused employee. The accused employee is then given the opportunity to object to any of the panel members sitting on his or her case. The said objection is dealt with as a preliminary matter before proceeding with the hearing of the substantive matter.

Secondly, the rules of procedure and the charges are read to the accused employee and his plea is taken. Thereafter, the employer and accused employee take their turns to open their case and call their respective witnesses (if any). A witness called by a party may be led to give his or her evidence by the party who called the said witness, then be cross-examined by the other party, and finally be re-examined by the party who called the said witness. The parties may also tender relevant documents in support of their respective cases. As already mentioned, this is an informal court trial, thus the strict rules of evidence as applied in a court of law do not apply. Reasonable accommodation must be made to ensure that the employee especially has a fair chance of getting his case across.

Thirdly, the employer and accused employee may be given the opportunity to orally or in writing present their closing addresses/submissions/arguments.

Fourthly, the Disciplinary Committee must prepare its report/findings, recommendations and sanctions. The accused employee must be furnished with the report and actions to be taken against him or her by the employer. As to whether the report is binding on the employer or not depends on the law.

What happens after the disciplinary proceedings?

Implementation of recommendations/sanctions

The employer may implement the recommendations of the Disciplinary Committee as contained in its report. The employer may impose any of the following sanctions on the accused employee provided it is contained in the law, contract or policy document governing the employment relationship: termination, dismissal, demotion, reduction in rank, suspension, fine, withholding of salary, incentives and benefits, reduction of salary, in-service training or workshop, therapy sessions, among others. The employer may also surcharge the accused employee, that is request the accused employee to make good any consequential loss to the institution as a result of the employee’s misconduct.

It is important to note that the employer is not bound by the recommendations of the Disciplinary Committee, and is at liberty to take his/her own decision provided it is in accordance with the law/contract/policy document.

Appeals

The accused employee may trigger an appeal if there is an appellate body (Appeals Committee). The employee may elect to pursue the matter further at the National Labour Commission or High Court after the appeal or bypass the appeal process depending on the circumstances of the case.

Employers must always ensure the disciplinary process gives the employee a fair hearing alongside respecting his or her rights. The Supreme Court has affirmed this principle in the case of Akpass Vs Ghana Commercial Bank Ltd (J4/08/2021) per Amegatcher, JSC as follows:

To give effect to the aged-old principle of fair trial in labour matters, adjudication of labour disputes affecting misconduct of workplace staff before disciplinary committees should as nearly as possibly follow adjudication practices which promote procedural fairness such as natural justice. There must also be pre-hearing protocols which eliminate elements of surprises. Every effort must be made to avoid ‘ambush’ or surprises likely to work against the interest of the staff under investigations. Elements of surprises have been abolished in civil disputes in this jurisdiction by the passage of C.I. 87 which introduced the exchanges of witness statements and exhibits at case management conference before trial. In criminal cases, accused persons now have true sense of justice after the interpretation of Article 19 by this court in the celebrated case of Republic v Baffoe-Bonnie & Ors [2017-2020] 1 SCGLR 327. Surprises, therefore, in administrative justice, should be a matter of concern to the court.”

Other matters

b. Summary proceedings

An employee may be dismissed summarily for gross misconduct provided it is contained in the institution’s disciplinary policy document. Summary dismissal is a common law right that the employer exercises over an employee. This right enables the employer to severe or cut short an employee’s appointment immediately if the employee does something that threatens the existence of the business or harms the reputation of the employer. Examples of such conduct are dishonesty, criminality, competition with the employer’s business, violent conduct, drunkenness, insubordination, dereliction of duty, and refusal to follow legitimate instruction, among other grounds provided in the contract of employment. Most often, the employee would have destroyed the trust and confidence required between an employee and employer.

In such an instance, the employer must set out in writing the nature of the employee’s gross misconduct, specifying the basis of the decision at the time of the dismissal that the employee was guilty of the alleged gross misconduct. In Coleman and Another vs Newmont Ghana Gold and Others [2021], GHASC 14, the Supreme Court held that the grounds for summary dismissal may be set out in a CBA. These include theft, behaving negligently, resulting in significant loss or damage to company equipment or property, and other grounds recommended by the Disciplinary Committee. Again, in Lagudah vs Ghana Commercial Bank Limited [2005-2006] SCGLR 388, the Supreme Court, speaking through Badoo JSC, stressed that an employer has the right to summarily dismiss an employee whose conduct is incompatible with the due or faithful discharge of his duties.

Interdiction

The employer may interdict an employee if he or she is under investigation, especially if his or her continued stay at post is likely to interfere with the investigation. The interdiction must be for a reasonable period and not in perpetuity. During the period of interdiction, the employer may as part of the conditions of interdiction pay the employee only a half-monthly salary. However, where the disciplinary process is truncated in favour of the employee, the employer must ensure that the remaining half of the employee’s monthly salaries and all other associated benefits or incentives are paid in full to the employee. The interdiction must be fair and justified under the law or contract/policy document governing the employment relationship.

The Supreme Court, in the case of Akpass vs Ghana Commercial Bank Ltd (J4/08/2021) [2021] GHASC 21, explained the legal effect of a letter of interdiction as per Amegatcher, JSC as follows: “A letter of interdiction only communicates to the worker that an offence is suspected to have been committed which requires a written response, further investigation or depending on the gravity, summary dismissal. It is prudent in ensuring fair trial to hand over such charges to the employee concerned, with the date and place of the trial and reasonable time to prepare his defence”.

Conclusion

Employers must pay attention to the key areas mentioned in this article when putting together disciplinary processes or complaint procedures for their institutions. The most important element of all is that no matter the disciplinary process that is adopted by an institution, it must be one that enhances due process, and grants employees a fair hearing.

Barnabas is a lawyer and an associate at the law firm, AB Lexmall & Associates.

Email: [email protected]

Vanessa is a lawyer and an associate at the law firm, AB Lexmall & Associates.

Email: [email protected]

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