EMPLOYEE DISCIPLINARY CODE

INDEX

1. Purpose of Code

2. General principles

3. Categories of misconduct

4. Reporting, investigating misconduct and initiating disciplinary procedures

5. Disciplinary action

6. Role of Directorate

7. Implementation

8. Review

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Open Rubric
1. PURPOSE OF THIS CODE

1.1 The purpose of this Code is to provide certainty and clarity with regard to the content and
consequences of misconduct and about the efficient and fair application of discipline.

1.2 The University recognises that the primary goals of discipline are to discourage misconduct
and to correct behaviour once misconduct has occurred. In order to use discipline as a
corrective measure, a regime of progressive discipline must, as a general rule, be
established and should become part of the institutional culture of the University.

2. GENERAL PRINCIPLES

2.1 The University’s right and duty to discipline

2.1.1 The University has the right to expect employees to conduct themselves in
accordance with acceptable standards and to discipline employees if they do not.
The University also accepts the duty to discipline as an integral part of the provision
of a safe and productive working environment to its employees, which duty must be
performed efficiently and fairly.

2.1.2 The Principal will be directly responsible for the application of discipline.

2.2 Application

The Code applies to all employees of the University

2.3 Basic human rights

The University respects the basic human rights of employees in the disciplinary process in a
manner consistent with the Bill of Rights in the South African Constitution.

2.4 Fairness and efficiency as basic principles

Discipline must be as fair and efficient.

2.4.1 Fairness

In order to be fair, discipline has to meet at least the following requirements:

(i) Clear rules must exist which regulate conduct in, or relevant to, the working
environment. To ensure that employees know about this Code, current and
new employees of the University will be informed about its existence and its
content. The Code will furthermore form part of the terms and conditions of
employment of current and prospective employees.

(ii) There must be sufficient proof that an employee actually breached a

disciplinary rule. Misconduct must be proved on a balance of probabilities.

(iii) The sanction must fit the misconduct. This Code provides guidelines as to
what factors should typically influence a proper sanction for misconduct and
furthermore requires of those persons and/or bodies charged with the
application of discipline to consider all relevant factors prior to the imposition
of a sanction.

(iv) The application of disciplinary rules as well as sanctions imposed for breach of
disciplinary rules must be consistent. In order to be fair, the application of
discipline has to be consistent, subject to compelling reasons that might
dictate deviation or differentiation. Consistency has a historical and
contemporaneous component. ‘Historical consistency’ means that like cases
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 have to be treated alike over time. ‘Contemporaneous consistency’ means
that like cases have to be treated alike where transgressions occur at the
same time.

(v) A fair procedure must be followed in the application of discipline. This Code
establishes a procedure to deal with misconduct in line with both the general
notion of fairness as well as constitutional and legislative requirements
regarding administrative fairness.

2.4.2 Efficiency

In order to be efficient, discipline (pre-formal and formal) must:

(i) be arrived at promptly. This means that the application of discipline should
take place as soon as possible after the incident. This Code provides clear
time limits within which misconduct should be dealt with.

(ii) be arrived at through explicit procedures, which this Disciplinary Code

endeavours to establish unless flexibility is justified on the basis of fairness
and equity. The determination of justification will be dealt with as a preliminary
matter by the chairperson or by agreement between the parties.

(iii) be devolved to the appropriate level of management. This Code provides for
the application of discipline at two levels, with appropriate provision for appeal:
st
1 level: The Director of the Directorate or equivalent (referred to as the
DoD) or Chairperson of Department (referred to as the CoD),
whichever is applicable, to apply pre-formal discipline in terms of
paragraph 5 hereunder; and
nd
2 level: The Employee Disciplinary Committee (referred to as the EDC) to
apply formal discipline in cases of misconduct where pre-formal
discipline has been exhausted or is inappropriate.

Appeal: The Disciplinary Appeals Committee (referred to as the DAC),

chaired by a person with appropriate legal knowledge and
experience to hear appeals from employees against decisions of
the EDC.

2.5 Representation

In any disciplinary proceedings instituted against an employee in terms of this Code, such
employee is entitled to representation by a recognised labour union representative or any
permanent co-employee of his or her choice. External legal representation will be permitted
upon application to the chairperson of the EDC or by agreement between the parties. In
cases of application to the EDC, the EDC will have a discretion to allow external legal
representation, which discretion must be exercised taking into account factors such as:

a) the nature of the questions of law raised by the dispute;

b) the complexity of the dispute;

c) the public interest; and

d) the comparative ability of the opposing parties or their representatives to deal with the
dispute.

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 2.6 Other important aspects

2.6.1 Separate provision for racial discrimination in the workplace.

The University supports and respects the protection of internationally proclaimed

human rights and condemns, along with all other forms of discrimination and
intolerance, all forms of racism and racial discrimination. In pursuing by all
appropriate means and without delay a policy eliminating racial discrimination in all
its forms and promoting understanding among all races, the University recognises
that, although this Code defines racial discrimination to be misconduct, an alternative
disciplinary procedure may be followed in matters concerning racial discrimination.
These alternative procedures may be contained in such a policy.

2.6.2 Distinction between discipline and incapacity

This Code deals with misconduct. Misconduct implies guilt, either in the form of intent
or negligence, on the part of the employee. Misconduct should clearly be
distinguished from procedures dealing with incapacity which might result from poor
performance, ill health or incompatibility. Incapacity does not result from fault (intent
or negligence) on the part of an employee. As such, one cannot deal with incapacity
in terms of this Code. If, however, poor performance is the result of negligence or
intent on the part of the employee, such behaviour may constitute misconduct and
may be dealt with in terms of this Code.

3. CATEGORIES OF MISCONDUCT

In order to promote certainty about the types of behaviour the University regards as misconduct, a
list of the most often encountered types of misconduct is given below. This list is not exhaustive
and is subject to the nature of the duties of the particular category of employee.

3.1 Absence from work

(absenteeism) (i) is the absence from work, workstation or designated area of
work without permission or a valid reason.

(ii) is the deviation, without permission or a valid reason, from a

designated travel route or routine in case of employees not
bound to a single work-site during the normal work period or
official overtime.

3.2 Reporting late for

duty/absconding from
duty early (i) is reporting late for duty without authorisation or a valid
reason.

(ii) is leaving the area of work before the normal end of daily
duty without authorisation or a valid reason.

3.3 Abusive or offensive

language is the utterance or use of abusive or offensive language.

3.4 Assault is the threat of immediate personal violence or the actual direct or
indirect application of violence to a person’s body.

3.5 Fighting refers to fighting in the workplace.

3.6 Violence refers to violent behaviour (with or without a dangerous weapon)

which disturbs the peace and/or may result in bodily injury.

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 3.7 Intimidation refers to conduct by an employee with the intent to compel
another person within the University to act or not to act against
that person’s will.

3.8 Competing with the

employer indicates where an employee, without the necessary permission,
engages or has any interest in a business or venture in any
way whatsoever, where that business is in competition
with the University, or where the employee’s engagement or
interest in any business or venture might or does give rise to a
conflict of interests between the employee’s personal interests
and the interests of the University.

3.9 Damage to property (i) is the wilful damage to University premises, equipment or
property.

(ii) is the wilful damage to University products before or during

production.

(iii) is the sabotage for purpose of causing delays in production

or the rendering of services.

3.10 Disclosing confidential

information refers to the disclosure of the following types of confidential
information without authorisation:

(i) Information pertaining to the operation of the University

(especially its financial interests) which, if disclosed, may
cause the University substantial harm, such as information
about donors (where the donor requires anonymity),
proposed property acquisitions, other contracts, tenders or
negotiating positions.

(ii) Private personal information about employees (such as

medical reports), unless the individual has placed this in the
public domain through his or her own actions or given written
consent to publication.

(iii) Examination question papers or results.

(iv) Confidential referees’ reports.

(v) Research results where a patent application has been made,

or is to be made.

(vi) Information relating to disciplinary hearings.

(vii) Information relating to selection committee proceedings

outside the mandate given for this purpose.

(ix) Information obtained through the exercise of any duty in

terms of this Code.

3.11 Dishonesty (i) Theft, which is the appropriation of University property with
the intent to deprive the University permanently of the
benefits of ownership.

(ii) The unauthorised possession of University products or

property.

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 (iii) The unauthorised removal of University products or property
from University premises.

(iv) The unauthorised use of University assets such as vehicles,

telephones, tools and equipment, and documentation for
purposes other than official University business.

(v) The unauthorised use of confidential information.

(vi) The clocking of another employee’s clock card or allowing

one’s clock card to be clocked by another employee without
a valid reason.

(vii) Falsification of official records or results.

(viii) False reporting of circumstances of accidents.

(ix) Making a false declaration in order to obtain a benefit or to

prejudice the University or to prejudice or benefit another
employee.

(x) The failure to disclose any information known to an

employee, non-disclosure of which prejudices or has the
potential to prejudice the University.

3.12 Plagiarism is the representing as one’s own work the work of another,
without appropriately acknowledging the source.

3.13 Use of drugs is the dealing in, possession and/or use of drugs in contravention
of the Drugs and Drug Trafficking Act 140 of 1992.

3.14 Drunkenness on
duty refers to being under the influence of alcohol/other prohibited
substances while on duty.

3.15 Insolence refers to disrespect and/or rudeness.

3.16 Insubordination is the failure or refusal by an employee to obey a lawful and

reasonable instruction or acting contrary to such an instruction.

3.17 Negligence in the

performance of duties is the failure by an employee, in the performance of his/her
duties, to comply with the rule or standard of care reasonably
expected by the University in similar circumstances. This may
include:

(i) performing poorly or inadequately for reasons other than

incapacity
(ii) carelessness.
(iii) disregard for routines, programmes or instructions.
(iv) unsafe work practices, including but not limited to non-
compliance with the dress code in an operational unit where
such rules exist.

3.18 Sleeping on duty is sleeping while an employee is on duty.

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 3.19 Breach of policies
and procedures is the intentional or negligent breach of existing University
policies and/or procedures.

3.20 Entry into a restricted

area is the entering into a clearly demarcated restricted area without
authorisation or a valid reason.

3.21 Sexual harassment in

the workplace is regarded as misconduct, which may be dealt with in terms of
the additional procedures provided for in the applicable University
Policy on Harassment in the workplace: It is unwanted conduct of
a harassment nature where –

(i) the conduct is persisted in; and/or

(ii) the recipient has made it clear that the conduct is considered
offensive; and/or

(iii) the perpetrator knew or should have known that the

behaviour is regarded as unacceptable.

3.22 Deliberate laying of

false charges or
complaints against
another employee is the intentionally laying charges or complaints against another
employee, knowing that such charges are false.

3.23 Racial discrimination is regarded as misconduct, which may be dealt with in terms of
the additional procedures provided for in the applicable University
Policy on Racial Discrimination:

It is any distinction, exclusion, restriction or preference based on

race, colour, descent, or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental
freedoms in the workplace and includes, but is not limited to:

(i) Direct racial discrimination

An employee will be regarded as discriminating against

another employee if on racial or ethnic grounds he/she treats
that person less favourably than he/she treats or would treat
other persons.

(ii) Indirect racial discrimination

An employee will be regarded as indirectly discriminating

against another employee if he/she applies to that other
employee a requirement or condition which he/she applies
or would apply to persons not of the same racial group as
that other employee but –

(a) which is such that the proportion of employees of the

same racial or ethnic group as that other employee who
can comply with it is considerably smaller than the
proportion of employees not of that racial or ethnic
group who can comply with it;

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 (b) which he/she cannot show to be justifiable irrespective
of the race, colour, descent or national or ethnic origin
of the employee to whom it is applied; and

(c) which is to the detriment of that other employee

because he/she cannot comply with it.

(iii) Discrimination on the basis of the race or ethnicity of the

spouse or the relative of an employee

An employee will be regarded as discriminating against

another employee, if on the basis of the race or ethnic
background of the spouse or a relative of that other
employee, he/she treats him/her less favourably than he/she
would treat a person of a different racial or ethnic
background.

(iv) Discrimination by way of victimisation

An employee will be regarded as discriminating against

another employee if he/she treats or would treat the
employee victimised less favourably than he/she treats or
would treat other employees because the employee
victimised asserts his/her human rights, not to be racially
discriminated against.

(v) Racial harassment

An employee (the harasser) harasses another employee if

the harasser engages in unwelcome or unwanted conduct
(which may include verbal abuse or hate mail) on account of
the racial or ethnic background of the employee harassed in
circumstances in which a reasonable person, having regard
to all the circumstances, would have anticipated that the
employee harassed would be offended, humiliated or
intimidated by that conduct.

(vi) Racial vilification

An act whereby an employee, by any activity in the

workplace, incites hatred towards, serious contempt for, or
severe ridicule of another employee on the grounds of that
employees’ racial or ethnic background.

4. REPORTING AND INVESTIGATING MISCONDUCT AND INITIATING DISCIPLINARY

PROCEDURES

4.1 Reporting misconduct

4.1.1 Any alleged misconduct must be reported in writing to the Directorate: Labour Law
(hereafter referred to as the Directorate) and to the DoD or the CoD, whichever,
copied to the Executive Director/Executive Dean, of the implicated employee on the
prescribed complaint form attached hereto as Form 1. The Directorate and the DoD
or CoD, whichever is applicable, must ensure that both are aware of the alleged
misconduct.

4.1.2 Only alleged misconduct reported on the complaint form will be acted upon, and no
investigation of misconduct will proceed without a completed and signed complaint
form detailing the alleged misconduct on record at the Directorate.

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 4.1.3 Copies of the written allegation of misconduct report must be kept by both the
DoD/CoD, whichever is applicable and the Directorate.

4.1.4 An alleged misconduct must be reported within one month of discovery

in writing.

4.2 Purpose of investigating misconduct

The purpose of investigating alleged misconduct is to determine:

4.2.1 whether sufficient evidence exists to support a charge of misconduct and, if so,

4.2.2 at what level disciplinary action should be initiated, and

4.2.3 whether alternate steps may be recommended, prior to initiating disciplinary action.

4.3 Investigating misconduct which can be dealt with on a pre-formal basis

4.3.1 If the DoD/CoD, whichever is applicable, in consultation with the Directorate, is

satisfied, based on the allegations contained in the complaint form, that the alleged
misconduct represents an instance of minor misconduct which could be dealt with on
a pre-formal basis, the DoD/CoD, whichever is applicable must investigate the
misconduct in consultation with the Directorate.

4.3.2 The DoD/CoD, whichever is applicable may not delegate the responsibility of
conducting such an investigation.

4.3.3 The DoD/CoD, whichever is applicable must impartially gather all information
relevant to the alleged misconduct.

4.3.4 The DoD/CoD, whichever is applicable may conduct or arrange any necessary
investigation within the department or operational unit, in consultation with the
Directorate.

4.3.5 If, at any stage during the investigation, it becomes apparent to the DoD/CoD,
whichever is applicable, in consultation with the Directorate, that the misconduct
must be dealt with as misconduct that requires formal disciplinary action, the
DoD/CoD, whichever is applicable must formally transfer the investigation to the
Directorate, to be dealt with in terms of paragraph 5

4.3.6 The Directorate may refer the matter back to the DoD, or CoD, whichever is
applicable if formal steps cannot be justified.

4.4 Investigating misconduct that may warrant formal disciplinary action

If the Directorate is satisfied, based on the allegations contained in the complaint form report,
that the misconduct alleged represents misconduct that requires formal disciplinary action,
the Directorate must investigate the alleged misconduct with, or without, the assistance of an
investigating officer.

4.5 Evaluation of evidence after completion of investigation

4.5.1 After completion of an investigation done in terms of either paragraph 4.3 or 4.4 the
Directorate determines whether prima facie evidence of misconduct exists. This
means that there must be sufficient evidence to prove, on a balance of probabilities,
transgression of every element of the alleged misconduct referred to in paragraph 3
of this Code. No disciplinary steps or proceedings may be taken in the absence of
such evidence.

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 4.5.2 If, after completion of the investigation, the Directorate is satisfied that evidence
exists that supports every element of the alleged misconduct, disciplinary
proceedings must be initiated in accordance with paragraph 4.6 below.

4.5.3 Proper records of the investigation and the reasons for a referral/non-referral to
disciplinary proceedings must be collated and kept up to date by the Directorate.

4.6 Initiating disciplinary action

4.6.1 If, after completion of the investigation sufficient evidence exists to support
alternative steps being taken prior to disciplinary action for misconduct, the
Directorate must make appropriate recommendations to the relevant authority or
Principal.

4.6.2 If, after completion of the investigation and evaluation of the evidence in view of the
factors listed in paragraph 4.6.3 below, it is apparent that sufficient evidence exists
of misconduct that, if proven, would warrant no more than a pre-formal verbal
warning, the ED applies pre-formal discipline in terms of paragraph 5 of this Code.

4.6.3 If, after completion of the investigation and evaluation of the evidence in view of the
factors listed in paragraph 4.6.4 below, it is apparent that sufficient evidence exists
of misconduct that, if proven, would warrant a more severe sanction than a written
warning valid for 6 months, the Directorate must refer the matter to the EDC to be
dealt with in terms of paragraph 5 of this Code, if so approved by the Principal. The
Directorate must make a recommendation to the Principal in this regard.

4.6.4 When evaluating evidence to decide on further steps, the Directorate must at the
least take the nature of the misconduct, precedent in the University and the
employee’s previous disciplinary record into account.

4.6.5 Any misconduct that may also constitute a crime must be reported to the South
African Police Services by the Directorate. The fact that the matter has been
reported to the South African Police Services, does not in any way affect the rights
of the University or any person in terms of this Code.

4.6.6 Disciplinary action must be initiated within two months of the alleged
misconduct being reported.

5. DISCIPLINARY ACTION

5.1 Pre-formal discipline

5.1.1 Pre-formal discipline is implemented by means of corrective counseling or a verbal

warning or a written warning valid for 6 months.

5.1.2 This procedure is invoked for daily operational matters or less serious misconduct as
follows:

a) Corrective counseling

In instances where the nature of the alleged misconduct warrants counseling,

the DoD or CoD of the employee, whichever is applicable must:

(i) convene a discussion with the employee and bring the alleged misconduct
to the employee’s attention;

(ii) determine the reasons for the alleged misconduct by affording the
employee an opportunity to respond to the allegations;

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 (iii) if misconduct has been committed, conduct corrective counseling by
informing the employee of the standards expected of him or her in future.

(iv) involve the employee assistance programme of UNISA in cases where such
involvement may be justified.

b) Verbal or written warning valid for 6 months

In instances where the alleged misconduct warrants a verbal warning,

alternatively a written warning valid for no more than 6 months, the DoD or CoD
of the employee, whichever is applicable must:

(i) convene a discussion with the employee and bring the alleged
misconduct to the attention of the employee;

(ii) invite a representative from the Directorate to be present at the

discussion so as to ensure that a fair process is followed and to assist
both parties in an attempt to reach a solution;

(iii) determine the reasons for the alleged misconduct by affording the
employee an opportunity to respond to the allegations;

(iv) if misconduct has been committed, after considering the advice from the
representative from the Directorate, the DoD or CoD, whichever is
applicable, may issue a verbal or written warning.

(v) the DoD or CoD issuing the warning must ensure that the employee
understands the nature of the warning, as well as the possible
consequences of a recurrence of the same or similar offence during the
period of the duration of the warning.

(vi) in the case of a written warning, the employee and his/her representative
must sign the warning to acknowledge receipt thereof even if the
employee does not agree with the warning having been issued.

(vii) if the employee refuses to sign the warning form, the representative of
the Directorate will confirm that the warning was issued in the presence
of the employee by endorsing the form to this effect

(viii) the employee’s refusal to sign the warning does not render the warning
invalid and a warning that is endorsed accordingly, will have the same
validity as a warning that is signed by an employee.

(ix) written warnings are valid for a period of six months from date of issuing
thereof.

(x) verbal warnings must be confirmed in writing.

(xi) the employee has a right to appeal against the finding and/or sanction
issued by the DoD or CoD, whichever is applicable. Such appeal must
be lodged in writing and within 5 days from the date that the verbal or
written warning was issued, with the Director of the Directorate: Labour
Law who must refer the appeal to the relevant Executive Director or
Executive Dean, whichever is applicable who must, in turn, consider and
finalise the appeal, within days from the date of receipt thereof.

5.1.3 Any record of pre-formal disciplinary action will not form part of the permanent
employment record of the employee. However, such record must be kept on a
separate disciplinary file of the employee by the Directorate, and is only accessible

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 to the Principal, the Vice Principal: Advisory and Assurance Services, employees of
the Directorate or employees authorised by the above in writing.

5.1.4 Records of pre-formal disciplinary action by the DoD or the CoD will be admissible in
subsequent formal disciplinary proceedings. However, if the warning has lapsed in
terms of applicable labour law principles, such warning may only be admitted as
evidence of employment history.

5.2 Formal discipline

Formal disciplinary action is reserved for serious or repeated acts of less serious
misconduct. If employees receive a written warning and commit a related misconduct during
the period of the validity of the warning, formal disciplinary action may be instituted.

5.2.1 Alternative steps before formal discipline is instituted

a) Where, upon consideration of a recommendation that formal disciplinary steps

be taken against an employee, the relevant authority or Principal is of the
opinion that a further attempt must be made to assist the employee in correcting
his/her misconduct, the relevant authority or Principal may order such
alternative steps as he or she may consider appropriate before approving
formal discipline. In this regard, the Directorate may also recommend such
alternative steps to the relevant authority, prior to a recommendation to the
Principal to institute formal disciplinary action.

b) The alternative steps referred to in paragraph 5.2.1(a) may include appointing

one or more suitably qualified persons to assist the employee concerned with,
amongst others, further counselling, training and/or development.

c) A report for the consideration of the relevant authority or Principal on the

outcome of any alternative steps must be submitted to the Directorate within the
time set by the relevant authority or Principal. On receipt of the report, the
relevant authority or Principal and Vice Chancellor must decide whether the
problem with the misconduct has been adequately addressed or whether formal
discipline should continue, which formal discipline only the Principal may
authorise.

d) Alternative steps may not be ordered by the relevant authority or Principal

where the misconduct, if proven, would also constitute a crime.

5.2.2 Disciplinary inquiry

a) Employee Disciplinary Committee (EDC) and Disciplinary Appeals

Committee (DAC)

(i) The EDC and DAC are independent disciplinary committees appointed as
and when the need arises and are not accountable to any person or
University structure.

(ii) An EDC has formal disciplinary jurisdiction over every employee in

respect of all misconduct.

(iii) The DAC hears appeals from employees aggrieved by a finding or ruling
of the EDC.

(iv) An EDC shall be constituted by a chairperson (external where

appropriate) and one assessor.

(v) The DoD or CoD, whichever is applicable, of the employee charged with
misconduct may not serve on the EDC dealing with such misconduct.
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 (vi) A DAC comprises of a chairperson and 2 assessors, one of whom should
be an Executive Director or Executive Dean of the University.

(vii) If an Executive Director or Executive Dean lodged the appeal, the

Executive Director or Executive Dean referred to in (vi) above will be
substituted by a Vice-Principal of the University.

(viii) The EDC and DAC may co-opt a suitably qualified internal or external
member to advise the EDC and DAC on points of law by agreement.

(ix) No member of an EDC may be appointed to hear an appeal from that

EDC.

(x) The composition of the EDC and the DAC must be done with due
consideration of employment equity.

(xi) The election of a panel of external chairpersons for the EDC and DAC will
be done by way of a process agreed upon between the parties to this
Code. Such chairpersons will be appointed for a maximum of 18 months
and the panel will be revised annually

(xii) The Chairpersons appointed in terms of this paragraph must undergo

prior appropriate training in chairing disciplinary enquiries, unless these
chairpersons are external chairpersons.

b) Preliminary

(i) Prior to the formal disciplinary hearing by an EDC, the Directorate with
the assistance of the DoD or CoD, whichever is applicable, must notify
the employee in advance, in writing, of the time and place of the hearing,
the substance of the allegations against that employee (i.e. the charge
sheet) and inform the employee of his/her rights at the hearing, namely –

(aa) the right to be present;

(bb) the right to be represented by a fellow employee or a recognised

labour union representative;

(cc) the right to an interpreter;

(dd) the right to cross-examine witnesses and other evidence presented

at the hearing;

(ee) the right to call witnesses and present evidence at the hearing; and

(ff) the right to information relevant to the allegations against him/her.

(ii) The Directorate must formulate the allegations (i.e. charge sheet) against
the employee and submit it to the Principal for approval. The Directorate
will represent the University in the matter; alternatively, the Directorate
must nominate a suitably qualified employee of the University for this
purpose. All persons representing the University must have appropriate
training and experience in conducting disciplinary proceedings.

(iii) As a general rule, notice of the hearing is handed to an employee not

less than twenty calendar days prior to the hearing. The twenty calendar
days will be calculated by excluding the first day and including the last
day.

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 (iv) The notice period must be sufficient to enable the employee to prepare
his or her case.

(v) Except in cases of serious misconduct and it is the duty of the prosecutor
to furnish the presiding officer with proof that all prescribed steps in the
pre-formal process have reasonably been complied with.

(vi) Should the employee require relevant information and/or documentation in

order to prepare for his or her defence, such information and/or
documentation should be requested from the Director: Labour Law, in
writing, at least 10 working days prior to the disciplinary hearing. The
Director will not unreasonably deny access to relevant information.
Should Director: Labour Law refuse or fail to provide the employee with
the requested information and/or documentation, the employee may bring
an application before the EDC or the DAC, whichever is applicable for the
provision of the requested information and/or documentation whereupon
the EDC or DAC will make a final determination for purposes of internal
processes

(vii) The Directorate must make the following arrangements for the hearing:

(aa) the time and date of the hearing in consultation with the EDC, the
employee and witnesses;

(bb) a suitable venue for the hearing;

(cc) recording of proceedings;

(dd) the presence of an interpreter, if required by the employee charged

with misconduct.

(viii) It is the duty of the person representing the University to make

arrangements for the presentation of evidence at the hearing by
arranging for witnesses who, as a general rule, have first-hand
knowledge of the facts to which they will testify, to be present at the
hearing and to relate their versions at the request of the EDC.

(ix) The employee charged with misconduct may, prior to or during

proceedings of the EDC, apply for a postponement, which application
must be granted on good cause shown. As a general rule, proceedings
may not be postponed more than twice and may proceed in the absence
of an employee where no good cause is shown for such absence.

a) Role of the EDC

(i) The EDC must approach the hearing with an open and unbiased mind.
Any member of the EDC who believes that he/she will be unable to
approach the hearing with an open and unbiased mind, must recuse
him/herself. If a member of the EDC believes another member to be
unreasonably prejudiced, the matter of possible recusal must be resolved
before the hearing may proceed. Any decision made must be brought to
the attention of the employee charged with misconduct.

(ii) The employee charged with misconduct may object to the impartiality of
any member(s) of the EDC. If good cause for recusal is shown, the
member(s) implicated must recuse themselves.

(iii) In case of a recusal, the Principal must appoint an alternate.

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 b) Process and powers of the EDC

(i) The hearing is a two-staged process:

(aa) Considering the evidence to establish whether the employee is

guilty of the misconduct as charged; and

(bb) if the employee is found guilty, considering evidence relevant to an

appropriate sanction.

(ii) An employee and/or his/her representative have the right to be present

during the proceedings. If an employee is not present at any stage of the
hearing, either personally or through a representative, without a valid
reason, the proceedings will not be invalidated. The hearing may then
take place in the absence of the employee and this must be noted on the
record. If an employee is absent, the chairperson must take reasonable
steps to find out whether the employee has a valid reason to be absent
before proceeding with the hearing.

(iii) At the outset, the chairperson of the hearing must:

(aa) establish whether the required notice has been given;

(bb) if the employee is represented, record the name of the

representative;

(cc) establish whether an interpreter, if requested, is present; and

(dd) establish whether a recording of the proceedings is being made.

(iv) If the EDC is satisfied that the procedural requirements have been met,
the chairperson then proceeds to:

(aa) request the person representing the University to put the charges
to the employee;

(bb) remind the employee of his/her basic rights, namely the right to
question witnesses and the evidence presented by them and the
right to call his or her own witnesses;

(cc) advise the employee of the possible sanctions if he/she admits to

the charge or is found guilty; and

(dd) request the employee to respond to the charge(s) (guilty or not

guilty) and to note the response.

(v) Should the employee plead guilty to the charge(s), the EDC must request
the person representing the University to indicate whether or not any
evidence pertaining to the charge(s) is required.

(vi) An employee may not be found guilty of misconduct unless the EDC is
convinced, on a balance of probabilities, in the light of the facts presented
to the hearing, that:

(aa) a valid rule regulating the alleged misconduct in the University

does in fact exist (the rules contained in paragraph 3 of this Code
constitute such rules);

(bb) the employee knew about the rule, or could reasonably be

expected to know of the rule;
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 (cc) the employee in fact breached the rule (this means finding that
each element of the alleged misconduct as defined has been
proved);

(dd the rule has consistently been applied in the University, and

(vii) If an employee is found not guilty because the evidence does not support
the allegation, proceedings must be closed and the employee acquitted.

(viii) If the employee is found guilty, the employee must be informed of the
finding and the hearing must proceed to the stage of determining the
sanction. At this stage, the employee must be informed of the right to
present evidence in mitigation.

(ix) The EDC may not impose a disciplinary measure(s) without considering
at least the following circumstances:

(aa) the gravity of the misconduct, which is divided into the following
categories:

(bb) the nature of the infringement;

(cc) the circumstances surrounding the commission of the offence;

(dd) the nature and level of the job done by the employee;

(ee) the personal circumstances of the employee (which includes the

length of his/her service, his/her status and the employee’s
previous disciplinary record);

(ff) the impact of the misconduct on the employee’s co-employees, the

workforce and the University itself;

(gg) precedent in the University for similar transgressions (this may

require consultation with the Directorate); and

(hh) the level and sincerity of co-operation by the accused employee

during all stages of the process.

(x) After hearing the evidence relevant to disciplinary measures and after
satisfying itself that the factors mentioned in paragraph 5.2.2(d) have
been properly considered, the EDC may decide on any one or more of
the following measures:

(aa) Corrective and rehabilitative measures, which may include:

(1) counselling

(2) training

(3) development.

(bb) A sanction, which may include:

(1) a written warning;

(2) a final written warning;

(3) dismissal with notice;

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 (4) summary dismissal (generally, it is inappropriate to dismiss an
employee for a first offence, except if the misconduct is
serious and of such gravity that it makes continued
employment intolerable. Examples of serious misconduct are
gross dishonesty or wilful damage to University property, wilful
endangering of the safety of others, physical assault and
gross insubordination);

(5) demotion, as an alternative to dismissal, with the employee’s

consent;

(6) suspension without pay as an alternative to dismissal, with the

employee’s consent (the University will continue to pay the
employee’s contributions to medical aid, housing, pension and
group life assurance, but will be entitled to recoup such
payments from the employee) for a period not exceeding three
months;

(xi) The finding and recommendation of the EDC must be made known to the
employee in writing within five working days of the hearing. The
employee must also be informed of his/her choice between an appeal in
terms of this Code or to take the matter further in terms of labour
legislation.

(xii) An employee, on written application and approval by the Directorate shall

be entitled to obtain copies of such documentation or electronic
recordings. Transcriptions of the hearing will be made available at the
employee’s expense.

(xiii) A copy of the finding must be sent by the Directorate to the Department:
Human Resources to be kept on the employee’s disciplinary file.

c) Appeal against the decision

(i) An appeal may be lodged against the decision of the EDC. The written
appeal must be lodged in writing with the Directorate within twenty
working days after receipt of the finding of the EDC, where after the
appeal will be referred to the DAC within ten working days and the DAC’s
written decision be made known within a further ten working days. When
an appeal is lodged against a decision of the EDC, the chairperson of the
EDC may, after consulting the other EDC members, suspend the
implementation of any sentence imposed by the EDC pending the
outcome of the appeal.

(ii) The Principal, after consultation with the Management Committee, may
lodge an appeal against the sanctions of the EDC on the basis that the
sanctions are grossly unreasonable in relation to the offence an
employee is found guilty of. Example of gross unreasonableness are a
verbal warning when wilfully endangering the safety of employees or
others, physical assault and gross insubordination, redeployment for
gross dishonesty. The written appeal must be lodged in writing with the
Directorate within fifteen working days after receipt of the finding of the
EDC, where after the appeal will be referred to the DAC within ten
working days.

(iii) If the DAC finds that the decision of the EDC is unfair, it may:

(aa) set aside the finding in whole or in part; and/or

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 (bb) refer any point back to the EDC; and/or

(cc) make its own finding after hearing such further evidence as it
deems necessary, and where it finds the employee guilty, may
impose an appropriate sanction. The DAC may not impose a more
severe sanction than the EDC without notifying the employee
thereof and without allowing the employee and/or his
representative to make submissions in this regard, which
submissions must be duly considered by the EDC.

(iv) A copy of the record and sanction imposed at the appeal must be sent to
the Directorate and the Department: Human Resources to be kept on the
employee’s disciplinary file.

(v) Subject to the provisions of this paragraph, the process in the DAC and
the powers of the DAC are with the required adjustments governed by the
provisions of paragraph 5.2.2.

d) Applications for postponement

(i) Applications for postponement made on the day of the disciplinary or

appeal hearing will be considered by the EDC or DAC whichever is
applicable.

(ii) Applications for postponement (including the reasons for the application)
prior to the date(s) of the disciplinary hearing must be made in writing and
addressed to the Director of the Directorate: Labour Law for consideration.

(iii) Should the Director decide not to grant postponement, reasons in writing
should be provided and the employee will have the right to bring the
application to the EDC or DAC, whichever is applicable, on the morning of
the hearing and the EDC or DAC, whichever is applicable will have the final
say.

(iv) An application for postponement will not be unreasonably denied.

e) Special authorisation to suspend an employee accused of misconduct on

full pay pending the hearing

(i) Upon written recommendation of the Directorate or the EDC, the Principal
may, if he/she has reason to believe that it would be in the interest of the
University or its employee(s) for an employee to be suspended
immediately from some or all of his/her duties and to be restricted from
entering some or any premises under the control of the University,
suspend and restrict the employee concerned for a period of up to ninety
calendar days.

(ii) Reasons that may typically provide grounds for suspension are:

(aa) the seriousness of the alleged misconduct, and whether it may

lead to formal disciplinary action;

(bb) the nature of the alleged misconduct;

(cc) a reasonable fear that the alleged misconduct may continue;

(dd) a reasonable fear that the presence of the employee may interfere
with the smooth running of the investigation and hearing (e.g.
intimidation of witnesses);

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 (ee) in general, the negative effect of the continued presence of the
employee on the ordinary business of the University and the
performance of the employee’s co-workers and their willingness to
participate in an investigation.

(iii) Upon receipt of the representations from the Directorate or the EDC, the
Principal must consider such representations and may decide to suspend
the employee subject to one or more of the following conditions:

(aa) the employee is suspended from some or all of his/her duties;

(bb) the employee is ordered not to enter some or all of the premises
under control of the University;

(cc) the employee is suspended until the DAC makes its finding and
ruling or until the Principal lifts the decision to suspend.

(iv) Where the Principal accepts a recommendation by EDC for the

suspension of an employee pending the outcome of an appeal to the
DAC, such suspension may exceed the period of ninety days referred to
in paragraph 5.2.2.6(i)

(v) An employee who is suspended in terms of this paragraph is at all times

entitled to receive all salary and benefits to which he/she is entitled as an
employee.

6. ROLE OF DIRECTORATE

6.1 It is the duty of the Directorate to:

6.1.1 facilitate the smooth and proper functioning of this Code;

6.1.2 act in accordance with the provisions of this Code;

6.1.3 assist in whatever manner required in investigating misconduct, which may include
appointing an independent investigator;

6.1.4 provide support to investigating officers in discharging their duties in accordance with
this Code;

6.1.5 keep records of all formal disciplinary action taken in the University and to make
these records available to the DoD or CoD, whichever is applicable, EDC or DAC,
recognised trade unions, Council and other relevant authorities on a continuing basis
to ensure the consistent application of discipline in the University, taking into account
affected employees’ right to dignity and privacy;

6.1.6 assist with the arrangement of hearings as determined in this Code;

6.1.7 inform the recognised labour unions of disciplinary investigations, hearings and
sanctions imposed where an employee indicates in writing that he/she wishes to be
represented by such union;

6.1.8 monitor the functioning of this Code and advise the Principal about possible
improvements to the Code;

6.1.9 identify and advise the Principal about training requirements in terms of this Code;

6.1.10 prepare a report on employee disciplinary matters to be tabled in Council by the

Principal at each meeting, or as often as the Council requires.

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7. IMPLEMENTATION

This Employee Disciplinary Code is replaced with effect from the date on which Council approves
this amended Code.

8. REVIEW OF CODE

This Code will be reviewed after three years by parties at the UBF.



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