Labour Matters Davies Ndumiso Sibanda
IN many workshops I have conducted, this question has arisen many times with many employers assuming that ignorance of the law or rule is not a defence only to be disappointed when told that it depends on circumstances.
As a general rule in labour cases, employees may be disciplined for breach of rules only if they knew of the rule or they ought to have known of the rule.
Workers cannot be accused of breach of rules if they did not know the rule or could not have reasonably be expected to have known the rule beforehand that the employer saw his actions as misconduct.
Where a supervisor gives an employee instructions that are known to the employee to be unlawful, the employee has to refuse the instructions otherwise it will be no defence to say I was merely following instruction.
Further, by virtue of seniority of an employee, the law can take the view that because of seniority of an employee, he should have known that what he was doing was in breach of implied rules. For example, a senior manager booked by his employer in a hotel cannot hold a party in his hotel room for twenty friends and order food and drinks and thereafter sign the cost into the employer’s account and expect the employer to pay. The employee is likely to be disciplined or even dismissed for such conduct. He cannot say he did not know expenditure limits while on business trips.
There are also rules that are dormant. These are rules that once worked but with the passing of time they have been ignored for a long time. Before resuscitating such rules, the employer must first raise the flag and warn all that from that day on breach of the once-dormant rule would result in disciplinary action. An employee cannot be found to be in breach of a rule that was evidently dormant at the time.
Not all rules are written down. As a general rule, about two thirds of the rules at workplaces are implied and only a third is written down. This is the reason why most codes of conduct have the clause “implied conditions of employment.” Even if the code of conduct does not have this clause, being a common law ground it can still be used to charge an employee since code of conduct provisions do not oust a common law position. Employees are expected to know that certain behaviours are simply not acceptable.
While there are many issues involved in administration of rules at the workplace, employers and workers should not just assume ignorance of the rule is not a defence or that if a rule is not written down then it is not applicable at work.
Davies Ndumiso Sibanda can be contacted on: stratwaysmail@yahoo.com or 0772 375 235.