Managing Disciplinary Action(s): Fencing the wrongdoer

“Discipline is the refining fire by which talent becomes ability” as the saying goes. We may have mustered a lot of talent under one business roof, but whether this talent has been converted into disciplined ability is a solemn question which needs - a deeply contemplated answer.

Nevertheless, discipline is not timidity or well tamed submission. It is not even toeing a line of obvious stupidity or joining a band wagon of (momentarily) popular blunders. And discipline is far from apple polishing or what can also be termed as - superior worshipping - to say it in the mildest possible manner.

In general sense, discipline is sharpening and presenting our positive talents, knowing our contributory worth and fearlessly take responsibility for all our actions and its results. The key is to understand and practice within credible limits - morally and socially. The corporate discipline on the other hand - becomes stiffer due to guiding restrictions in the form of functional responsibilities, procedural adherence and behavioural formats – both expressed and implied.

Be it in general sense or corporate sense, the ultimate power of discipline springs from ‘Individual Integrity’. In the most simple of examples, at cricket for instance we need a rigorous appeal and eventual umpire intervention only if the batsman refuses to walk out when he knowingly nicks the ball which is caught perfectly by the wicket keeper. It’s all about integrity which leads to batting discipline at that moment in time.

Similarly, it is the status of our integrity that makes us to genuinely admit our wrongdoing irrespective of the consequences. The moment we refuse the sincere admission and teasingly demand “prove it if you can” action from the management, (on top of the misconduct and error that is already committed or occurred) there rolls in further indiscipline on the part of employee and the need for stern disciplinary action on the part of the management.

Integrity at the top
In managing corporate disciplinary action(s), the integrity and consistency of the top management layer serve a greater purpose upon transparency and fair play. The corporate disciplinary action process is never a tool for vengeance or subtle intimidation. Then it is nothing but using a legitimate tool of governance to meet a personal agenda of an individual or a group sharing the same agenda. In order to block the emergence of this malicious setting, a few companies have formulated (and most importantly practice) a “Standard Disciplinary Action Procedure” – as a guidance manual in those organizations.

One corporate business manager put his concerns across worriedly, saying, “The consistency is what is lacking in here. Basically double standards. What is wrong is wrong irrespective of who does it. For instance - on similar misconduct one employee is sacked and another is not even questioned. The expressed reasoning is the business utility value of the second employee but covered reality is that s/he is well connected. What happens in here is the employees lose respect for the management, fear of foul play on job security sets in; forced to feel the need to resist - and it plants the seeds of radical unionism!! ” This should never be the case to begin with - in managing corporate disciplinary action(s).

Management perspective
In the absence of statute law applicable to the disciplinary process in Sri Lanka, what relates in managing corporate disciplinary action(s) is the parameters enumerated in case law where the required degree of proof is based on BALANCE OF PROBABILITY unlike in criminal law where the offence charged with - needs to be proved beyond reasonable doubt - substantiated by solid evidence.

The clear grasp of this difference helps the discipline managers of a business organization to perform objectively. A mix up in legal interpretation only makes the action process a little short of a comedy of errors. It in fact has been an unfortunate occurrence in some corporates and forums in the past. It is important that the management must - not only deliver the conclusion based on natural justice but also being seen as doing so. And the fact that “delayed justice is as bad as denied justice!!” is a mantra to remember.

Preliminary investigation
Once an act of misconduct is committed or a doubt thereof is detected or reported, the corporates that follow the path of proper governance rightly authorize a Preliminary Investigation – PI which is known as a ‘fact finding process’ - focusing on the bona-fide authenticity of the matter. This is the stage where the designated investigators of the organization record formal statements from the complainant, back track physical and circumstantial evidence (for and against) and formally interview the respondent on record. The process of PI actually is an unbiased feed back initiative that enlightens the top management as to determine whether there is a prima facie case that warrants further disciplinary steps.

Domestic inquiry
If the transpired PI findings warrant further disciplinary action, the stage is set for a Domestic Inquiry – DI. The initiation takes place when the Human Resources - HR or Industrial Relations – IR division calls for written explanation from each respondent on the relevant findings of PI. If the received explanations are acceptable to the top management, even at this stage – the process could be called off by way of a mild disciplinary action such as a written warning.

If the explanations are not accepted, the next step is the DI in which the initiative takes the shape of a mini tribunal within the organization. It is an accepted norm that the Inquiring Officer at this stage should be an external professional, while the prosecution on behalf of the organization should – ideally - be executed by the Investigation or Security Manager of the company. The defence on behalf of the respondent is allowed, either by a fellow employee or a staff union representative of the company at his or her choice.

Clear conscience
At the Domestic Inquiry, the “burden of proof ” rests on the prosecution of which the principal task is to prove the framed charges in order to justify a (potential) severe disciplinary action. Failure to follow the step by step process with unbiased transparency often results in a sacked employee seeking external legal redress in the form of the Labour Tribunal or an appropriate forum of law where the employee plays the role of complainant and the company NOW becomes the respondent – kind of a switching ends scenario. Unjust dismissal, if proved at a Labour Tribunal or an appellate court of law means some intense compensation, offering the job back with back wages and gross embarrassment to the management. It doesn’t mean that we should avoid fencing the WRONGDOER. Yes ! Do it where it really is due, yet with 360 degrees cloudless conscience. Being clearly above-board brings you home safely. An un-named verse found on the desk of a corporate HR director spells out the value of discipline simply and splendidly.

“Nothing left loose does anything creative … No horse gets anywhere until it is harassed;