UCT Disciplinary Policy | Human Resources

PURPOSE
1. The purpose of this Disciplinary Policy and Code is to set and maintain standards of conduct within the University, and to provide guidelines for handling disciplinary matters to ensure that all employees are treated fairly and consistently.
2. This Code also seek to encourage behaviour that aligns with UCT's values and policies by ensuring that corrective action is taken against misconduct.
APPLICABILITY
1. The disciplinary policy and procedures apply equally to all UCT employees irrespective of seniority, level or category.
2. They should be read in conjunction with other university policies regulating specific forms of conduct.
3. This Policy does not apply to incapacity (ill health or injury), as such matters will be dealt with in accordance with the Labour Relations Act 66 of 1995, Schedule 8, Item 10.
DEFINITIONS OF TERMS
1. In this policy, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and equivalent expressions bear corresponding meanings:
  1. “Act” means the Labour Relations Act 66 of 1995, as amended.
  2. “Arbitrary disciplinary action” means any disciplinary action taken contrary to the principle contained in this policy.
  3. “Case presenter” means a person who is appointed on behalf of UCT to present UCT’s case against the accused employee to the chairperson.
  4. “Chairperson” means the person designated by the Vice-Chancellor (or nominee) to preside at the formal disciplinary hearing of the employee concerned.
  5. “Code of conduct” means the document which sets out the lists of offences and the procedure to be followed in disciplining an employee for misconduct, annexed to this document marked “Annexure A”.
  6. “Code of good practice” means the Code of Good Practice, Schedule 8 to the Act.
  7. “Day” means any day other than a Saturday, Sunday or public holiday, and when any particular number of days is prescribed for the doing of any act, the number of days must be calculated by excluding the first day and including the last day.
  8. “Employee” means any person, excluding an independent contractor, who works for UCT and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer.
  9. “Employee representative” means any employee of UCT, or a member of a university recognised employee representative body. Where applicable, ‘employee representative’ may mean an external legal representative (see 4.1.6 below).
  10. “Inquiry” or “hearing” means a meeting chaired by a chairperson, the object of which is to consider relevant facts and to make an appropriate decision on the disciplinary matter at hand.
  11. “Investigation” refers to the process of finding facts to establish whether there is prima facie evidence of wrongdoing in relation to the alleged disciplinary offences.
  12. “Line manager” means a person to whom an employee directly reports.
  13. “Misconduct” means behaviour, conduct, action or inaction that is inconsistent with UCT policies.
  14. “Prima facie evidence” means evidence which is sufficient to establish a fact or raise a presumption unless disproved or rebutted.
  15. “UCT” or “University” means the employer, the University of Cape Town.
  16. “Vice-Chancellor” means the Vice-Chancellor of UCT who is, for the purpose of these procedures, acting on behalf of and mandated by the Council of UCT to manage disciplinary matters at UCT.
POLICY PRINCIPLES
1. UCT shall apply the following principles and guidelines in respect of this policy:
  1. UCT undertakes to ensure that employees shall at all times be treated fairly and commits to promoting productive employee relations and safe and fair labour practices.
  2. Disciplinary action shall be instituted with due consideration of all the relevant facts, and no employee of UCT shall be subjected to arbitrary disciplinary action.
  3. UCT expects every employee to act in accordance with UCT policies and procedures.
  4. While UCT is entitled to satisfactory conduct and appropriate work performance from all of its employees, no disciplinary action shall be considered against an employee unless they are afforded a proper opportunity to state their case and to defend themselves against any allegations made against them.
  5. In accordance with the provisions of this policy, every employee may, during the hearing, in terms of the procedure as set out in the disciplinary policy and procedures, be entitled to be assisted or advised by a fellow employee of their choice or a trade union representative, provided that such representative is an employee of UCT.
  6. Employees are not entitled to be assisted by an external legal practitioner during any proceedings unless approval for such legal representation has been granted by the chairperson. In determining whether to allow external legal representation, the chairperson shall consider the nature of the questions of law raised by the dispute, the complexity of the dispute, the seriousness of the charge(s) and likely sanction, public interest, and the comparative ability of the parties or their representatives to deal with the dispute.
  7. The responsibility to provide guidance and advice on the procedural aspects of the policy lies with Employee Relations/Human Resources (ER/HR).
  8. When a trade union representative is disciplined the trade union shall be notified in writing.
  9. Where there is more than one accusation arising from the same incident(s) against the same employee, the accusations may be dealt with in the same proceedings.
  10. If a matter involves evidence of criminal conduct, UCT may lay criminal charges and/or institute civil proceedings against the employee to recover any money or property lost as a result of the crime. However, UCT will not be precluded from taking disciplinary steps against the employee concerned irrespective of whether the criminal investigations or proceedings are still pending or have been abandoned, or whether the suspect or accused has been acquitted, convicted or sentenced.
DISCIPLINARY PROCEDURES
When it is suspected or alleged that an employee has committed misconduct, the disciplinary process outlined below shall be followed.
1. INFORMAL DISCIPLINE
  1. UCT shall endeavour to correct an employee’s behaviour through gradual disciplinary measures such as verbal and written warnings where this may be appropriate.
  2. Line managers are responsible for the application of informal discipline in their teams.
  3. A verbal or written warning may be issued where there is an act of misconduct which is not serious enough to warrant a final written warning.
  4. The verbal or written warning shall then be placed on the employee’s personnel file.
  5. A formal disciplinary inquiry need not be convened. However, the employee should be provided with an opportunity to make representations prior to the verbal or written warning being given.
2. FORMAL INVESTIGATION
  1. If prima facie evidence of the alleged wrongdoing is not immediately apparent, the line manager, with the assistance of the human resources business partner (HRBP), may request that an appropriate investigator be appointed by the Human Resources’ Employee Relations Office to investigate the allegations.
  2. Depending on the complexity of the matter, the investigation may either be referred to the university’s investigations office, or alternatively, an appropriate external investigator with the requisite skills.
  3. The line manager must inform the employee of any investigation into their conduct and of the outcome of such an investigation.
  4. The investigation should be conducted without unreasonable delay and should ascertain the facts with a view to recommending whether there is prima facie evidence of misconduct. The investigator may speak to the employee concerned and to any witnesses and should review any documents (such as emails, notes, security camera footage etc) which may be relevant to the allegations. Wherever possible, any witness interviews should be conducted face to face and affirmed by a signed affidavit.
  5. The investigator should also inform witnesses that they may be required to give evidence at a disciplinary hearing. All employees have a duty to provide all information and give evidence that may be relevant to a disciplinary hearing.
  6. Once the investigator has completed the investigation, they should report their findings in writing and make recommendations to the Director: Employee Relations (or nominee) on whether there is prima facie evidence of misconduct.
  7. If there is prima facie evidence of a breach of the disciplinary policy exists, the Director shall inform the line manager and HRBPs promptly. In consultation with HRBP, line manager shall formulate the charges and serve them on the employee within a reasonable period of time.
  8. UCT will endeavour to finalise the disciplinary process within six months of the employee from the date the charge sheet is served, depending on the seriousness, complexity, and the conduct of the disciplinary proceedings of the case.
  9. The employee is expected to sign the charge sheet upon receipt of same. Should the employee fail or refuse to sign, a witness shall sign the charge sheet in the presence of the employee attesting that a copy of the charge sheet was served on the employee in person or sent to their last known email address electronically or by registered post to their last known address.
  10. The notice of the disciplinary hearing and/or the charge sheet must set out the essential elements of the alleged misconduct of which the employee is accused and contain information about the employee’s rights in respect of the disciplinary procedure.
3. PRECAUTIONARY SUSPENSION
  1. When there is an allegation of misconduct, UCT has the right to suspend the employee immediately on full pay and benefits at any stage of the investigation and/or disciplinary process.
  2. Any intention to suspend should be authorised by the Executive Director: Human Resources. If the accused employee is the Executive Director: Human Resources, the intention to suspend will be authorised by his/her line manager.
  3. The employee may be suspended from duty pending an investigation or the outcome of a disciplinary hearing if -.
    1. The employee is alleged to have committed a serious disciplinary offence whose likely sanction is dismissal;
    2. There is a possibility of tampering with evidence, interfering with the investigation or intimidating the witness(es); or
    3. Not suspending the employee could have a negative impact on the operation of the business of UCT or the image or reputation of the employer.
    4. Any other relevant factor.
  4. UCT may at any stage of the disciplinary process immediately suspend the employee until the disciplinary hearing is held and finalised.
  5. The employee shall be invited to make representations in writing within 48 hours of the suspension being issued to show cause why the suspension should not be made final. The Executive Director: Human Resources, after considering the submissions, may confirm, vary or withdraw the suspension. Should the employee not take up this opportunity to make written representations, the proposed suspension will proceed, and the employee will accordingly be advised thereof in writing. As part of the process, employees have a right to be assisted by a fellow employee of their choice or trade union representative, provided that such representative is an employee of UCT.
4. DISCIPLINARY HEARING
  
  When an act of misconduct has allegedly been committed, a disciplinary hearing must be convened. The disciplinary hearing and the decision shall be determined on a basis of equity and fairness.
  1. Disciplinary hearing process
    1. An employee shall be given, at least five (5) working days written notice to attend the disciplinary hearing. The notice shall include the date, time and place of the hearing.
    2. Postponement requests shall only be granted in exceptional circumstances, by agreement between the parties or at the sole consideration of the chairperson. The request should reach the chairperson 2 working days prior to the hearing.
    3. The notice must also state the charges that are levelled against the employee.
    4. The employee must be advised of their right to be represented and to lead evidence at the disciplinary hearing, and to question witnesses.
    5. The employee must also be advised that their failure to attend the disciplinary hearing without good cause might result in the hearing continuing and a finding being reached in their absence.
    6. All copies of relevant documents that the employer intends using in support of its case at the hearing must be given to the employee at least five days before the disciplinary hearing, unless circumstances dictate that this is not possible or if the employee agrees otherwise. A reciprocal obligation rests on the employee to provide the aforementioned document/information to the case presenter two days after receiving the bundle of evidence from the employer.
    7. An internal or external chairperson will be appointed by the Vice-Chancellor, or their nominee. If the Vice-Chancellor is the employee that is subjected to the hearing or if the Vice-Chancellor has a conflict of interest in relation to the disciplinary hearing, a chairperson will be appointed by the Chair of Council, or their nominee.
    8. The university may, at the discretion of the Vice-Chancellor or nominee, appoint an individual to lead evidence on behalf of UCT in the hearing.
    9. Only the representatives, affected employee(s), line manager, witnesses, and interpreter, if required, may be present in the disciplinary inquiry. The admission of any other person as an observer shall be subject to approval of the chairperson.
    10. A representative of the Employee Relations Office and/or Human Resources Department will monitor and ensure that the principle of fairness is applied prior to, during and after the disciplinary hearing.
    11. Management, employees and all parties concerned must ensure confidentiality in the disciplinary inquiry.
5. GUIDELINES FOR THE CONDUCTING OF DISCIPLINARY HEARINGS
  1. The chairperson will chair the hearing and introduce all parties for the record.
  2. The chairperson will read the charges as stated in the charge sheet.
  3. The chairperson will ask the alleged offender to state their plea in response to the allegations.
  4. If an employee admits to committing an act of misconduct, they shall be afforded an opportunity to submit mitigating circumstances, and thereafter a disciplinary sanction may be imposed on them. Should the employee plead not guilty, the inquiry will proceed to a hearing.
  5. The chairperson will afford the case presenter an opportunity to present their case, call witnesses and submit relevant evidence.
  6. The accused employee or their representative will be granted an opportunity to cross-examine witnesses and challenge the evidence led on behalf of UCT.
  7. The case presenter will be allowed an opportunity to re-examine witnesses.
  8. The accused employee or their representative will present their response and will be granted the opportunity to call witnesses.
  9. The chairperson will grant the opportunity to the employer’s representative/employee representative to cross-examine the employee or employee/employer witnesses and challenge their evidence.
  10. The accused employee or their employee representative will be allowed an opportunity to re-examine their witnesses.
  11. The parties will be allowed an opportunity to submit closing arguments to the chairperson.
  12. The chairperson may at the close of each party’s case request the parties to address them on mitigating and/or aggravating circumstances, should they deem it so fit. This address shall in no way be construed by either party to be a predetermined judgment in favour of or against the accused employee in any way. Alternatively, the chairperson may adjourn proceedings until they have made a finding.
  13. The chairperson must make their written findings on the evidence presented within a period of seven (7) days after the hearing, or on such a date determined by the parties.
  14. The chairperson will decide on an appropriate sanction.
  15. If the chairperson considers the sanction of dismissal appropriate, they shall make this recommendation to the Vice-Chancellor or their nominee, who may either accept or reject the recommendation of dismissal. If the Vice-Chancellor is the accused at the disciplinary hearing, the recommendation shall be made to the Chair of Council.
  16. If the recommendation is rejected, the Vice-Chancellor (Chair of Council where the accused is the Vice-Chancellor) shall implement their own sanction, subject to the requirements of law and fairness after having taken the appropriate legal advice.
  17. The sanction notice must also advise the employee of their right to lodge a dispute with the CCMA within 30 days of dismissal or within 90 days of progressive discipline being issued.
6. RIGHTS OF THE ACCUSED EMPLOYEE
  1. The accused employee has the following rights regarding the matter lodged against them and such rights must be expounded on the charge sheet:
    1. The right to hear and receive the charge/issue in writing.
    2. The right to state their case in defence against the accusation(s).
    3. The right to receive and study any document submitted as evidence.
    4. The right to have their case finalised in line with clause 5.2.8 above.
    5. The right to have an interpreter present if necessary, to interpret the proceedings in a language they understand. The request for an interpreter must be submitted to the Employee Relations Office at least four (4) working days before the start of the disciplinary hearing.
    6. The accused employee has a right to representation, as per clause 4.1.5 above, by a fellow employee of their choice or a trade union representative, provided that such representative is an employee of UCT.
    7. The accused employee does not have an automatic right to external legal representation. External legal representation where approval for such representation has been granted by the disciplinary hearing chairperson in line with clause 4.1.6 above.
    8. The right to prepare to respond to the charge(s) and to receive timely notice of a disciplinary hearing (at least five [5] working days before the start of the disciplinary hearing).
    9. The right to pose questions to witnesses either directly or via the chairperson. The chairperson shall provide direction in this regard depending on the individual circumstances of each hearing.
    10. The right to present mitigating circumstances prior to a decision being made regarding an appropriate sanction.
    11. The right to a sanction within a reasonable period of time (within seven [7] days, or on such a date determined by the parties thereafter).
    12. The right to be notified of any sanction.
    13. The right to refer a dispute about the disciplinary process to either the CCMA or the appropriate labour forums.
INQUIRY BY ARBITRATOR
1. An inquiry by an arbitrator is an adversarial process to be chaired by a CCMA commissioner. The process will only be utilised for offences that may, or have the potential to, result in or warrant a sanction of dismissal.
2. The process can only be utilised if the employer and the accused employee involved in that particular disciplinary matter agree to utilise the inquiry by arbitrator procedure. The employee may only consent to an inquiry by arbitrator if they have been advised of the allegations against them. The process is subject to the provisions of section 188A of the Labour Relations Act (LRA). If parties agree to follow the inquiry by arbitrator procedure in terms of the LRA, the ER office should refer the matter to the CCMA.
3. The appointed CCMA commissioner shall have the same powers as contemplated by section 188A of the LRA, and the award issued by the commissioner will be final and binding and have similar status and effect as those issued by the arbitrator under the auspices of the CCMA.
CODE OF CONDUCT
(Refer to the Code of Conduct, Annexure A).
1. Where an employee is found guilty of misconduct, such misconduct may warrant the imposition of a disciplinary sanction.
2. The severity of the disciplinary sanction will depend on the circumstances of each case and mitigating, and aggravating circumstances will be taken into account.
3. The appropriateness of the sanction will also depend on the impact of the act of misconduct on workplace relationships.
DISCIPLINARY SANCTIONS
This policy allows for the following disciplinary action:
1. Verbal warning;
2. Written warning;
3. Final written warning;
4. Suspension without pay, up to a maximum period of three (3) months;
5. Dismissal with or without notice;
Note: Where an employee is found guilty of a disciplinary offence involving the loss of money or property belonging to UCT, the chairperson may impose restitution in addition to any other sanction in line with section 34 of the Basic Conditions of Employment Act.
1. VERBAL WARNING
  1. A verbal warning may be given when an employee’s behaviour is determined by the line manager to be inappropriate, or where there is an act of misconduct which is not serious enough to warrant a written warning. A formal disciplinary inquiry need not be convened, provided that the employee is nonetheless given an opportunity to make representations prior to the verbal warning being given.
  2. The employee is required to sign that they have been issued with a verbal warning in the presence of a witness or the employee’s chosen employee representative, if any.
  3. The manager issuing the verbal warning shall clearly communicate it to the parties. The verbal warning shall record the reasons for such warning and the action necessary to correct and prevent a recurrence of the offence, and note that further disciplinary action shall be taken if no improvement takes place.
  4. The verbal warning shall be signed by the person issuing the warning and a copy thereof shall be handed to the employee. If the employee refuses to sign the warning, any witness may sign in their stead and record such refusal. The verbal warning shall then be placed on the employee’s personnel file.
  5. A verbal warning shall remain valid for three (3) months from the date of issue.
  6. If the employee does not agree with the sanction of a verbal warning, the employee may make written representations to the next level of reporting, which shall be recorded with the documented verbal warning.
  7. If an employee is not satisfied with a warning issued to them, they may refer a dispute to the CCMA in terms of the Act.
2. WRITTEN WARNING
  1. A written warning may be given when an employee has failed to improve their behaviour, where verbal warning/s have been issued within the preceding three (3) months for the same or similar offence/s, or where there is an act of misconduct which is not serious enough to warrant a final written warning. A formal disciplinary inquiry need not be convened, provided that the employee is nonetheless given an opportunity to make representations prior to the written warning being given.
  2. A written warning shall be valid for six (6) months from the date of issue.
  3. In the event that the employee does not agree with the sanction of a written warning, the employee may make written representations to the next level of reporting, which shall be recorded with the written warning.
  4. If an employee is not satisfied with a written warning issued to them, they may refer a dispute to the CCMA in terms of the Act.
3. FINAL WRITTEN WARNING
  1. A final written warning may be given either where a written warning is considered inadequate because of the seriousness of the conduct of the employee or when the same or similar misconduct is committed within three (3) months of the employee concerned having been issued with a written warning for the same or similar misconduct. A formal disciplinary inquiry must be convened unless the employee waives their right to a formal disciplinary inquiry.
  2. Failure to heed a final written warning may result in dismissal. A final written warning shall be valid for nine (9) months from the date of issue.
  3. If an employee is not satisfied with a warning issued to them, they may refer a dispute to the CCMA in terms of the Act.
4. STATUS OF WARNINGS ISSUED
  
  Only current warnings will be taken into account when deciding on an appropriate sanction. UCT may, however, take lapsed warnings into account if a pattern of misconduct is observed.
5. SUSPENSION WITHOUT PAY
  1. When an act of misconduct is committed, suspension from work without pay may be imposed. A formal disciplinary hearing must be convened in order to impose this sanction, unless the employee waives their right to a formal disciplinary hearing. The period of suspension can vary from one to three months, depending on the seriousness of the offence.
  2. Suspension without pay cannot be handed down as a sanction unless the employee agrees thereto. In the event the employee does not agree to the sanction of suspension without pay the chairperson might consider a sanction of dismissal.
6. DISMISSAL
  If a final written warning fails to correct the behaviour, or if an incident occurs which appears to require stronger action than a final written warning or suspension without pay, the employee may dismissed with or without notice.
REPLACEMENT AND WITHDRAWAL
This policy replaces all previous policies and procedures in this regard unless otherwise expressly stated.

ANNEXURE A

UNIVERSITY OF CAPE TOWN CODE OF CONDUCT

INTRODUCTION
This code or standards outlines and provides for conduct, actions and or omissions that warrant disciplinary action by the University of Cape Town.
ACTS OF MISCONDUCT
Whilst the below list is not an exhaustive list, UCT recognises the following instances as misconduct, which, depending on the circumstances, may result in the termination of an employee’s employment.
1. Dishonesty;
2. Falsification of any documents, claim forms or records;
3. Wilful damage of UCT property;
4. Unauthorised possession of, removal, or attempts to remove from UCT premises, property belonging to UCT, employees, customers, visitors or students;
5. Theft / unauthorised use/possession of UCT property;
6. Disclosing confidential information, other than a disclosure contemplated by the Protected Disclosure Act 26 of 2000, belonging to the employer that relate to his/her duties;
7. Unauthorised absence from work;
8. Incompetence, negligence or gross negligence in the performance of duties;
9. Drunkenness and intoxication while on duty or when reporting for duty;
10. Failure of an employee to notify their employer about their absence;
11. Participation in or incitement of unprotected industrial action or labour unrest;
12. Sexual or racial harassment or violence;
13. Intimidation of employees, clients or visitors or students;
14. Victimisation of employees, clients or students;
15. Insubordination or insolence;
16. Assault , and attempted or threatening assault;
17. Disregard of or wilfully failure to carry out a lawful order given by an authorised person;
18. Use of abusive language;
19. Conflict of interest;
20. Knowingly giving false evidence;
21. Operating a scheme aimed at lending money to fellow employees for which interest is charged;
22. Failure to comply with UCT policies and procedures;
23. Making false accusations against an employee with intention to annoy, embarrass or harm the employee or in bad faith; or
24. Failure by any line manager to institute disciplinary action where it is warranted.

The list of offences stipulated in the Code of Conduct is not exhaustive but merely a guideline for disciplinary action applicable to certain offences.

Policy updated on 19 June 2021

Page last updated: 17 May 2022