Termination of Employment in the Philippines Terminating an employee in the Philippines is taken VERY seriously and can be a complex process,

especially after the employee is regularized. The Philippine Constitution says, no involuntary servitude in any form shall exist except as punishment for a crime whereof the party shall have been duly convicted. In view of the prohibition on involuntary servitude, an employee is given the right to resign under art. 285 of the Labor Code. The provision recognizes two kinds of resignation without cause and with cause. If the resignation is without cause, the employee is required to give a 30-day advance written notice to the employer, to enable the employer to look for a replacement to prevent work disruption. If the employee fails to give a written notice, he or she runs the risk of incurring liability for damages. The same provision also indicates the just causes for resignation (with cause) Serious insult to the honor and person of the employee Inhuman and unbearable treatment; Crime committed against the person of the employee or any of the immediate members of the employees family; and Other analogous causes. In this second type of resignation, the employee need not serve a written notice. Forced resignation is not allowed and is considered constructive dismissal a dismissal in disguise. Employee retirement is either voluntary or compulsory under art. 287 of the Labor Code. Dismissal of an Employee in the Philippines An equality of rights exists between employer and employee. While the employer cannot force the employee to work against his or her will, neither can the employee compel the employer to continue giving him or her work if there is a lawful reason not to do so. Thus, the employer may terminate the services of an employee for just or authorized causes after following the procedure laid down by law, but the employer has the burden of proving the lawfulness of the employees dismissal in the proper forum. Just causes are blameworthy acts on the part of the employee such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud or willful breach of trust, commission of a crime and other analogous causes (art. 282, Labor Code). Authorized causes are of two types business reasons and disease. The business reasons are installation of labor-saving devices, redundancy, retrenchment and closure or cessation of operation (art. 283, Labor Code). Before the employer can terminate employment on the ground of disease, he must obtain from a competent public health authority a certification that the employees disease is of such a nature and at such a stage that it can no longer be cured within a period of six months even with medical attention (art. 284, Labor Code; Implementing Rules of Book VI, Labor Code). Those hired on a temporary basis, that is, for a term or fixed period are not regular employees, but are contractual employees. Consequently, there is no illegal dismissal when their services are terminated by reason of the expiration of their contracts. Lack of notice of termination is of no consequence, because a contract for employment for a definite period terminates by its own term at the end of such period. An Illegal Strike can be cause for Termination of Employment Employment is not deemed terminated when there is a bona fide suspension of the operations of a business or undertaking for a period not exceeding six months, or when the employee fulfills a military or civic duty (art. 286, Labor Code). Under the Corporation Code (sec. 80), the surviving or consolidated entity in a merger or consolidation automatically assumes all rights and obligations, assets and liabilities of the combining entities. This includes obligations or liabilities under valid agreements, like labour contracts. The surviving or consolidated entity must, therefore, recognize the security of tenure and length of service of the workers of the merging or consolidating

corporations. By the fact of merger or consolidation, a succession of employment rights and obligations occurs. Notice and prior procedural safeguards As stated above, dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based on authorized causes involve grounds business or health allowing the employer to terminate. A termination for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal, reinstatement and full backwages are mandated under art. 279 of the Labor Code. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted. Procedurally, (1) if the dismissal is based on a just cause under art. 282 of the Labor Code, the employer must give the employee two written notices and a hearing or opportunity to be heard before terminating the employment, that is, a notice specifying the grounds for which dismissal is sought and, after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under arts. 283 and 284 of the Labor Code, the employer must give the employee and the Department of Labour and Employment written notices 30 days prior to the effectivity of the separation. Severance pay with Termination As already noted, separation pay is required to be paid to the employee when there is termination of employment by the employer for an authorized cause, the amount of which depends on the cause. If the termination is due to the installation of labour-saving devices or redundancy, the separation pay is one months pay for every year of service or one month pay, whichever is higher (art. 283, Labor Code). If the termination is due to retrenchment to prevent losses, or closure or cessation of operation of the establishment not due to serious business losses, or due to disease, the separation pay is one-half months pay for every year of service or one month pay, whichever is higher (arts. 283 and 284, Labor Code). However, there is no requirement for separation pay if the closure is due to serious business losses. Avenues for redress From the foregoing, four possible situations may be derived: (1) the dismissal is for a just cause under art. 282 of the Labor Code, or for an authorized cause business reason under art. 283 or health reason under art. 284 and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) and there no process; (4) for a not observed. In the first situation, the dismissal is undoubtedly valid and the employer will not incur any liability, save for separation pay when the dismissal is for an authorized cause. In the second and third situations, where the dismissals are illegal, art. 279 of the Labor Code mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for nominal damages for non-compliance with the procedural requirements of due process. If the dismissal is for an authorized cause, the employee is also entitled to separation pay. Compulsory arbitration of illegal dismissal cases is conducted by the Labour Arbiters of the National Labour Relations Commission and their decisions are appealable to the Commission (arts. 217 and 218, Labor Code).

In view of the stated preference for voluntary modes of settling labour disputes under art. 13 (3) of the Constitution and art. 211of the Labor Code, voluntary arbitration of illegal dismissals is recognized on the basis of mutual agreement between the parties (art. 262, Labor Code). Compulsory arbitration is both the process of settlement of labour disputes by a government agency which has the authority to investigate and issue an award binding on all the parties, as well as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party. While a voluntary arbitrator is not part of the labour department, he or she renders arbitration services provided for under labour laws. Generally, the voluntary arbitrator is expected to decide only questions that are expressly delineated by the submission agreement. However, since arbitration is the final resort for the adjudication of disputes, the arbitrator can assume that he or she has the power to make a final settlement. Thus, assuming that the submission agreement empowers the arbitrator to decide whether an employee was discharged for just cause, the arbitrator can reasonably assume that his or her powers extend beyond giving a mere yes-or-no answer and include the authority to reinstate with or without back pay. Difference between a Just and Authorized Cause of Termination Just cause refers to a wrong doing committed by the employer or employee on the basis of which the aggrieved party may terminate the employer-employee relationship. Authorized cause refers to a cause brought about by changing economic or business conditions of the employer. Causes for Termination by the Employer 1. Serious misconduct; 2. Willful disobedience of employers lawful orders connected with work; 3. Gross and habitual neglect of duty; 4. Fraud or breach of trust; 5. Commission of a crime or offense against the employer, employers family or representative; and 6. Other analogous causes. Just Causes for Termination by the Employee 1. Serious insult by the employer or his or her representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his or her representative; 3. Commission of a crime by the employer or his or her representative against the person of the employee or any of the immediate members of his or her family; and 4. Other analogous causes. Authorized Causes for Termination 1. Installation of labor-saving devices; 2. Redundancy; 3. Retrenchment to prevent losses; 4. Closure or cessation of business; and 5. Disease not curable within six months as certified by competent public authority, and continued employment of the employee is prejudicial to his or her health or to the health of his or her co-employees. Due Process in the Context of Termination of Employment Due process means the right of an employee to be notified of the reason for his or her dismissal and, in case of just causes, to be provided the opportunity to defend himself or herself. Components of Due Process in Termination Cases

In a termination for a just cause, due process involves the two-notice rule: 1. A notice of intent to dismiss specifying the ground for termination, and giving to said employee reasonable opportunity within which to explain his or her side; 2. A hearing or conference where the employee is given opportunity to respond to the charge, present evidence or rebut the evidence presented against him or her; 3. A notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify the termination. In a termination for an authorized cause, due process means a written notice of dismissal to the employee specifying the grounds given, at least 30 days before the date of termination. A copy of the notice shall be furnished the Regional Office of the Department of Labor and Employment of the Philippines (DOLE). An Employee may Question the Legality of his or her Dismissal The legality of the dismissal may be questioned before the Labor Arbiter of the National Labor Relations Commission (NLRC) of the Philippines, through a complaint for illegal dismissal. In establishments with a collective bargaining agreement (CBA), the dismissal may be questioned through the grievance machinery established under the CBA. If the issue is not resolved at this level, it will be submitted to voluntary arbitration. Proving the Dismissal is Legal In a case of illegal dismissal, the employer as the burden of proving that the dismissal is legal. Grounds for an Employee to Question his or her Dismissal An employee may question his or her dismissal based on substantive or procedural grounds. The Substantive aspect pertains to the absence of a just or authorized cause supporting the dismissal. The Procedural aspect refers to the notice of termination or the opportunity to present an explanation. What are the rights afforded to an unjustly dismissed employee? An employee who is dismissed without just cause is entitled to any or all of the following: 1. Reinstatement without loss of seniority rights, or separation pay if reinstatement is not possible; 2. Full backwages, inclusive of allowances and other benefits or their monetary equivalent from the time compensation was withheld from him or her up to the time of reinstatement; 3. Damages and attorneys fees if the dismissal was done in bad faith. Reinstatement Reinstatement means restoration of the employee to the position from which he or she has been unjustly removed. Reinstatement without loss of seniority rights means that the employee, upon reinstatement, should be treated in matters involving seniority and continuity of employment as though he or she had not been dismissed from work. When a Labor Arbiter rules for an illegal dismissal, reinstatement is immediately executory even pending appeal. Forms in which reinstatement be effected Reinstatement may be actual or payroll in nature, at the option of the employer. Full Backwages Full backwages refer to all compensations, including allowances and other benefits with monetary equivalent, that should have been earned by the employee but was not collected by him or her because of unjust dismissal. It includes all the amounts he or she could have earned starting from the date of dismissal up to the time of reinstatement. In cases of illegal dismissal, a dismissed employee who has found another job may still be entitled to collect full backwages from his or her former employer. Full backwages is a form of penalty imposed by law on an employer who illegally dismisses his or her employee. The fact that the

dismissed employee may already be employed and earning elsewhere does not extinguish the penalty. The former position of the employee no longer exists at the time of reinstatement In that case, the employee shall be given a substantially equivalent position in the same establishment without loss of seniority rights and to backwages from the time compensation was withheld up to the time of reinstatement. Employee Benefits when the Establishment no longer exists When an establishment no longer exisits at the time an order for reinstatement is made the employee can claim benefits. The employee is entitled to a separation pay equivalent to at least one-month pay or at least one month pay for every year of service whichever is higher, a fraction of at least six months shall be considered as one whole year. The period of service is deemed to have lasted up to the time of closure of the establishment. He or she may also claim backwages to cover the period between dismissal from work and the closure of the establishment. Separation Pay In authorized cause terminations, separation pay is the amount given to an employee terminated due to retrenchment, closure or cessation of business or incurable disease. The employee is entitled to receive the equivalent of one month pay or one-half month pay, whichever is higher, for every year service. In just cause terminations, separation pay is also the amount given to employees who have been dismissed without just cause and could no longer be reinstated. Reinstatement is not possible so that separation pay shall be given to an illegally dismissed employee 1. When company operations have ceased; 2. When the employees position or an equivalent thereof is no longer available; 3. When the illegal dismissal case has engendered strained relations between the parties, in cases of just causes and usually when the position involved requires the trust and confidence of the employer; 4. When a substantial amount of years have lapsed from the filing of the case to its finality. Exception for an employee dismissed for just cause be entitled to separation pay As a rule, no. But in instances where the just cause for dismissal is other than serious misconduct or moral turpitude, the employee may be awarded Financial Assistance in the amount of one months pay as a form of compassionate justice. Proof of Financial Losses is Necessary to Justify Retrenchment Yes. Proof of actual or imminent financial losses that are substantive in character must be proven to justify retrenchment. Proof of Financial losses is NOT necessary to justify redundancy In redundancy, the existing manpower of the establishment is in excess of what is necessary to run its operation in an economical and efficient manner. Other Conditions before an Employee may be Dismissed on the Ground of Redundancy It must be shown that: Good faith in abolishing redundant position; There is fair and reasonable criteria in selecting the employees to be dismissed, such as but not limited to less preferred status (e.g. temporary employee), efficiency and seniority. A one-month prior notice is given to the employee as prescribed by law.

Failure to Comply with the Due Process Requirements Failure to comply with the due process requirements will NOT invalidate a dismissal with an otherwise established just or authorized cause. The employee, however, will be entitled to backwages from the time of termination till finality of the decision confirming the presence of a just or authorized cause. Difference between Transfer and Promotion Promotion is the advancement of an employee from one position to another with an increase in duties and responsibilities, and is usually accompanied by an increase in salary. Promotion is a privilege and as such may be declined by the employee. Transfer is a lateral movement that does not amount to a promotion. It constitutes a valid exercise of management prerogative, unless it is done to defeat an employees right to self-organization, to get rid of undesirable workers, or to penalize an employee of his or her union activities. If done in good faith, managements decision to transfer an employee may not be questioned. An employees refusal to transfer may constitute willful disobedience, a just cause for his or her dismissal. An Employer Transferring an Employee to another place of work without prior notice Generally, an employer can not transfer an employee to another place of work without prior notice. But if the urgency of the service requires a transfer, and such transfer is exercised in good faith for the advancement of the employers interest and will not adversely affect the rights of the employee, the transfer may be undertaken even without the employees consent. Non-union member availing of the grievance machinery in case of termination If a non-union member belonging to an appropriate bargaining unit of the recognized bargaining agent and pays agency fees to the union and accepts the benefits under the collective agreement, said non-union members may avail of the grievance machinery. On the other hand, if the non-union member is not part of the appropriate bargaining unit of the recognized bargaining agent and is expressly excluded in the collective agreements, said employee cannot avail of the grievance machinery. Reasonable period for an Employee subjected to Dismissal to answer charges against him or her by the Employer A reasonable period should be provided wherein the employee can answer all the charges against him or her, gather evidence and confront the witnesses against him or her. It should include the opportunity to secure the assistance of a representative who could be a union officer. Reasonableness of the period should be based, among others, on the gravity of the charges against the employee. An employee charged with an offense may be placed under preventive suspension while he or she is preparing to answer charges filed against him or her by the employer Only on grounds that his or her continued presence inside the company premises poses a serious imminent threat to the life or property of the employer or his or her co-workers, and only for a period of 30 days may be placed under preventive suspension. After 30 days, the employee should be reinstated to his or her former position or in a substantially equivalent position. The employer, however, may extend the period of suspension provided that the employee is paid his or her wages and other benefits during the extension. If the employer decides to dismiss the employee after completion of the investigation, the employee is not bound to reimburse the amount paid to him or her during the extended period. The employer is required to immediately notify the employee in writing of a decision to dismiss him or her stating clearly the reasons for the dismissal. Preventive suspension is not a disciplinary measure, and should be distinguished from suspension imposed as a penalty. Validity of the Employers Decision on Termination

A dismissed employee may still question the validity or legality of his or her dismissal by filing a complaint for illegal or unjust dismissal before the Arbitration Branch of NLRC. In such a case, the burden of proving that the dismissal is for a valid or authorized cause rests on the employer. During the pendency of the termination case, an employee may be be retained in his or her work An employee may be retained in his or her work even during the pendency of a termination case under the following circumstances: 1. Upon serving the preventive suspension period of 30 days; and 2. Upon management prerogative allowing the employee to be retained at work and his or her continued employment poses no serious nor imminent threat to the life or property of the employer or his or her co-employees. The Effects of Termination may be Suspended Pending Resolution of the Case The Secretary of Labor of the Philippines may provisionally order a reinstatement in the event of prima facie finding that the dismissal may cause a serious labor dispute as in a strike or lock-out, or is in implementation of mass lay-off. Services of an Employee Terminated due to Disease The employer may terminate employment on ground of disease only upon the issuance of a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six months even with proper medical treatment. Suspending Operations of a Business If the period of suspension of operations do not exceed six months, the workers shall be reinstated to their respective positions without loss of seniority rights if they indicated their desire to resume work not later than one month from the resumption of operations of business. If the shutdown is for a period of not more than six months such as may occur in equipment check or repair, stock inventory or lack of raw materials, the employee is only temporarily laid off and, therefore, employer-employee relationship is not severed. If it will last for a period of more than six months and is of an indefinite character, it may be considered as equivalent to closure of the establishment leading to termination of employment. In such a case, the requirements of the law and rules on employee dismissals must be observed.

Knowing laws on labor and employment is vital to ones business because a minor violation could lead you to big trouble. Most employers, especially those who do not have legal counsel, violate these laws usually not because they intend to, but because of sheer ignorance. Unfortunately, ignorance of the law does not excuse them from complying with it. Companies have closed shop after their employees slapped them with labor suits which ended up with these companies paying huge amounts of money representing unpaid wages or benefits and damages. To avoid being in the same situation, the following are relevant laws which you should always bear in mind as you go about you.
1. The termination of a staff may fall into one of the categories mentioned below

- Resignation on their own - Resignation by force

- Retirement on due dates

2. Resignation should be only in writing from the staff with the approval of the department head

3. The resignation should be processed and forwarded to the MD for final approval

4. The HR Department should conduct exit Interviews and grievances / suggestions should be documented

5. A Hand over report has to be obtained from the employee detailing the duties and responsibilities of the post and complete status of work at the time of his leaving

6. The services of employees on the ground of misconduct can be terminated only after an enquiry is conducted

7. On acceptance of resignation the following have to be done

- The acceptance of resignation or the termination letter has to be sent to the resigning or retiring person respectively - All the authorities and responsibilities defined have to be removed or delegated - Passwords if any have to be inactivated with immediate effect to prevent any unauthorized activities - Any cards (swipe card, identity cards) given to him/her have to be returned back and to be deactivated with immediate effect - A No Due Certificate should be prepared and should be authorized by the HR Officer, Accounts, and Administration certifying that there are no dues from the staff to the organization. - The list of the entire amount due to the staff and the recoveries to be made from them has to be prepared - HR officer should maintain a checklist for preparing & verifying the final settlement for the staff - After exercising the procedures mentioned in the checklist, the final settlement should be prepared and with MD approval should be forwarded to accounts for disbursement

- The staff file should be closed and removed from live employees file - Relieving letter should be prepared and issued to the staff - Relieving letter and Experience Certificate has to be signed by MD and has to be issued - All certificates received from the employee have to be returned back and the signature of the employee should be obtained acknowledging the receipt of certificates by him

6.

DICIPLINARY CODE

6.1

Introduction

a)

This document is an expression of SBCGTs policy on discipline and a guide to all company employees. Discipline is a system designed to promote orderly conduct. Formal disciplinary action should be the final course of action in rectifying employee behaviour. Disciplinary action should be supported through investigation, reasonable evidence of guilt and careful consideration of the circumstances of each case before formal action is taken. Disciplinary action should always be prompt, fair and firm. While every attempt has been made to ensure that this Disciplinary Code is applicable to general disciplinary instances in SBCGT, the requirement for use of discretion within the framework of and in accordance with the spirit of the code may be required. A successful disciplinary system and climate is dependant on the good judgement, understanding and consistent treatment of the parties involved in disciplinary action.

b) c)

d)

e) f)

g)

6.2

Procedure and Documentation

6.2.1 Action of supervisor when an alleged offence has been committed or is reported to have been committed

When an offence is alleged to have been committed, the Supervisor concerned will investigate or have the matter investigated, and take any form of the following actions:

a) b) c) d) e)

Dismiss the case; Counsel the employee; Give a verbal warning; Give a recorded warning; Initiate a formal disciplinary enquiry;

6.2.2 Informal disciplinary action

It is desirable for sound interpersonal relations within SBCGT that Supervisor where possible resolves disciplinary matters by means of informal disciplinary action. Informal disciplinary action can take the form of either a verbal warning or counselling.

An employee found to have committed an offence of a minor nature should be counselled by the Supervisor, without an entry being made on the employees personal record. The Supervisor may however, make a record of the counselling session to allow for an assessment of the employees performance record, should this be necessary at the time, and with the employees knowledge and understanding thereof, formulate a plan of corrective action.

During the counselling, the Supervisor should ensure that the employee is made aware of the nature of the offence and the standard of the conduct or performance that will be expected in the future.

6.2.3 Procedure for formal complaints

a)

A supervisor handling a formal complaint must investigate the case with the assistance of the Human Resources Officer, where possible, and ensure that the relevant sections of the complaint form (Appendix 7) are correctly completed within 48 hours of the offence having been committed or the supervisor having been made aware of the fact that an offence has been committed. A copy of the complaint form should be passed without delay to the Human Resources Officer who will advise whether: The accused should be suspended pending full investigation (if this has not already been done); Advise the supervisor on whether to continue with a formal complaint The Complainant and the accused must provide names of all persons who should be regarded as witnesses as their statements will assist in ensuring a fair hearing of a case. Where possible, should there be witnesses who are nonemployees, formal statements should be recorded from them as they may be invited to attend the disciplinary hearing.

b)

c)

d) e)

6.2.4 Disciplinary Inquiries

The Human Resources Officer will be responsible for the overall application of the code and should where possible:

a) b)

Advise and guide all participant on the Disciplinary Code; Ensure that the code is applied fairly and consistently in all cases (procedurally and substantively); When all documentation pertinent to the matter has been collected, the Human Resources Officer shall serve the papers on the accused and/or his/her representative to allow the employee to fully prepare himself prior to the hearing;

c)

d)

The Hearing Chairperson will hear the case within four full working days of the complaint being lodged only when further investigate is required shall this period be extended; The Human Resources Officer will be responsible for arranging a suitable venue and date for the inquiry, informing all the relevant parties; informing the accused of his/her rights to representation; informing the accused of his/her right to appeal against the decision and arranging for all relevant statements to be taken. The complainant shall be responsible to complete the Complaint form.

e)

f)

Attendance at the Inquiry

The following persons must be in attendance at any hearing inquiry:

a) b) c) d) e) f)

Hearing Chairperson Complainant Alleged Offender (accused) Representative of alleged offender (if requested by alleged offender) Witness (as) (as and only when required for the duration of the testimony) Human Resources Officer.

The Hearing/Inquiry

a)

The accused should be given at least 48 hours notice in advance of the disciplinary hearing (Notice for Disciplinary hearing see Appendix 8), indicating the date, time and venue of the hearing. In addition, the responsible person convening the hearing should advise the accused of his/her right of representation. In the event that the accused alleges that the Hearing Chairperson is implicated in the case and therefore will not be unbiased, the accused may request the appointment of an alternative Hearing Chairperson, giving a full motivation for such a request. The decision whether to appoint another Hearing Chairperson or not rests with the Human Resources Officer. Such requests shall however not be unreasonable withheld.

b)

Duties and Responsibilities of the Hearing Chairperson

The Hearing Chairperson shall be any employee on the same level as the direct supervisor of the Complainant, but not the direct supervisor.

The Hearing Chairperson should not have been privileged to any information pertaining to the inquiry prior to the inquiry.

Ideally the Chairperson of a disciplinary inquiry will be required to follow the guidelines below when performing duties of a presiding official:

a)

Introduce and identify all present, stipulate the purpose and format of proceedings; Ensure that the alleged offender has been given sufficient notification of the inquiry, and that he/she has signed and acknowledged acceptance thereof. Ensure that the alleged offender has understood his/her employee rights in this regard; Establish if witnesses are present and if so inform the hearing that they will be excluded from proceedings once they have led evidence and have been cross questioned;

b)

c)

d)

Should it be established that the accused was not informed of his right to representation or that the witnesses are not present, the Hearing Chairperson will adjourn and reschedule the hearing for a later date; Should the accused fail to attend the hearing, the Hearing Chairperson will establish whether the accused was notified of the date, time and venue of the hearing. It will be advisable to re-notify all parties to attend the disciplinary hearing at a later date if notification was not given; If the accused fails to attend a disciplinary hearing, the Hearing Chairperson should in writing advise the accused of the date, time and venue of the hearing and advise him that should he fail to attend, the hearing will proceed in his absence;

e)

f)

g)

Should the accused fail yet again to attend and if no prior notification for his absence was given, he may be deemed to have waived his right to attend the hearing. The Hearing Chairperson will then decide the case in absentia on the facts available and the accused will be informed, in writing, of the outcome; Having ascertained that the particulars on the complaint form are correct, the Chairperson will inform the accused of the charge(s) against him/her, ascertain his/her understanding thereof and the accused will be asked to plead on the charges; The accused should be permitted to make any further pertinent comments should he/she wish to do so (whether or not he/she has already made a written statement); According to the plea entered by the accused, the Hearing Chairperson must verify all facts and allegations by questioning the accused, Complainant and any other parties in order to arrive at a decision. Only information provided in the case documentation pertaining the charge in question and statements raised during the inquiry will be used as facts pertaining to the disciplinary inquiry; The Hearing Chairperson will allow the accused, with his/her representative, the opportunity to express opinions on the case;

h)

i)

j)

k)

l)

All witnesses should be called to give evidence and to have such evidence examined by the hearing Chairperson, the Complainant and the accused and/or the accusers representative; If during the course of the hearing, the Hearing Chairperson finds it necessary to obtain further information, the case should be adjourned to allow for further investigation; If the accused wishes further evidence to be submitted, this should be allowed, provided that the Hearing Chairperson is of the opinion that such further evidence could be of relevance; Once the Hearing Chairperson is of the opinion that he/she has gathered sufficient evidence surrounding the case, he/she should request any witness (as) to leave the room; At this stage the Hearing Chairperson may call for a recess during which he/she may liase with the Human Resources Officer in order to obtain further advice and information; The Hearing Chairperson may call a recess at any stage of the proceedings and may consider any call for a recess by any other party of the inquiry; Once the Hearing Chairperson is satisfied that he/she is in a position to make a decision on the guilt or innocence of the accused, he/she will reconvene the inquiry and inform the accused and his/her representative of his/her findings. The Complainant and Human Resources Official (where possible) should be present when the decision of guilt or innocence is informed. If it is the opinion of the Hearing Chairperson that the accused is not guilty, he will inform him accordingly and the finding case dismissed will be entered on the Complainant form and the employees disciplinary record will be cleared of any reference to the case; Where an employee is found guilty, the Hearing Chairperson will then take note of the offenders record of service, disciplinary record, mitigating and aggravating circumstances, seriousness of the offence, consistency of application and any other circumstances he/she may deem necessary to consider;

m)

n)

o)

p)

q)

r)

s)

t)

u)

In all cases, current un-expired disciplinary warnings will be taken into account when deciding on the appropriate action; Depending on the nature and seriousness of the offence, the whole of the employees disciplinary record may be considered; The Hearing Chairperson will then record the penalty on the complaint form and inform the offender of the penalty awarded in terms of Section 6.5 and the reasons for arriving at the decision. The Hearing Chairperson will inform the offender of the period for which the warning will remain on his/her record as a valid entry. The Hearing Chairperson will also inform the offender of his/her right to appeal in terms of Section 6.6 of this code; With regard to corrective action, the Hearing Chairperson will, in liaison with the immediate Supervisor, the employee and/or representative, and the Human Resources Officer; formulate an action plan to address the required change in behaviour. The employee will be required to assist in this process and make proposals in this regard. The aim is to ensure that the process of correcting unacceptable behaviour is addressed objectively and amicably; Request the employee to acknowledge the disciplinary action proposed. Should the employee opt not to sign, a witness should be requested to acknowledge that the details of the inquiry have been communicated to the accused.

v)

w)

x)

y)

Recording of Proceedings

a)

It is in the interest of SBCGT and the individual that all proven offences and subsequent disciplinary action be accurately recorded. The Chairperson will ensure that all other required administrative details on the complaint form are completed before forwarding the document to the Human Resources Officer for overall review and control. Statements, Complainant forms and other disciplinary records will be retained by the Human Resources Officer as these may be required even after an employee has left SBCGTs services.

b)

c)

d)

The Human Resources Officer will be responsible for the input of disciplinary penalties on employees personal files.

6.3

Special Cases

Suspension

a)

An employee may be suspended from work immediately if he/she has allegedly committed or is allegedly involved in any one of the following offences: Assault/attempted assault Desertion Sleeping on duty Negligent loss, driving, damage or misuse of company property Abuse of electronic/data facilities Sexual Harassment Fighting Riotous Behaviour Alcohol and drug offences Wilful loss, damage or misuse of company property Theft/Unauthorised possession of company property Breach of Trust Offences related to dishonesty Offences related to Industrial Action Any act or omission which intentionally endangers the health or safety of others, or is likely to cause damage to Company property Interference with disciplinary and/or grievance investigations Abusive or provocative language (when it is likely to cause a disturbance) Insubordination (if the situation shows signs of getting out of control) Persistent refusal to obey instructions. In certain instances the Supervisor will recommend that the offender be removed from the work place pending investigation of the case. He/she will take immediate steps to report the matter to his/her immediate Supervisor, who will raise the matter with the CEO. Irrespective of the outcome, the employee will be paid for days he/she was suspended; It is mandatory to liase with the Human Resources Officer prior to suspending an employee in order to endure that the suspension is procedurally and substantively fair.

Poor Work Performance

Cases involving substandard or deteriorating work performance are to treat differently from those regarded as transgressions of misconduct.

The following guidelines should be considered when dealing with such cases. An attempt should be made to resolve alleged poor work performance by means of counselling the individual involved. Where poor the supervisor identifies work performance, the following procedural action should be considered:

a) b)

Investigate and identify the problem area(s) Communicate this to the individual concerned, and jointly agree on the appropriate plan of action in order to resolve the matter. If deemed necessary and relevant, norms should be established by arranging appropriate task lists and the time duration allowed for the completion of each task; Consideration should be given to the appointment of a coach or mentor to assist the employee to improve performance; Accurately minute the agreed contents of any agreement put in place and provide the Human Resources Officer with a copy for record keeping purposes; Regular evaluation and follow up on the agreed plan of action should be made; Should counseling fail to produce the desired improvement, alternative action should be considered in liaison with the Human Resources Officer. Alternative action could include, but is not limited to, termination of the employment contract on the grounds of incapacity, demotion or a transfer to an alternative position. The employee, throughout this process, will be entitled to representation.

c)

d)

e) f)

6.3

Offences outside normal working hours

SBCGT reserves the right to take any action it may deem appropriate against employees who are, in the opinion of SBCGT, guilty of gross misconduct not merely in their working situations. This is particularly so where the nature of the misconduct may affect the employment relationship with any other party. Actions that directly relate to the nature of the business are also liable for disciplinary action.

Court Actions

Where an employee has been criminally charged or legal action has been instituted for an employment related breach, SBCGT reserves the right to take disciplinary action against the employee for the alleged offence, in terms of this Code.

6.4

Classification of Offences:

Offences are classified into five major categories.

6.4.1Absenteeism 6.4.2Offences related to Control at Work 6.4.3Offences relating to indiscipline or disorderly behavior 6.4.4Offences related to dishonesty 6.4.5Industrial Action

6.4.1 Absenteesim

Absenteeism in the disciplinary context means being absent from work for an entire working shift, or part thereof, without the expressed permission from a direct supervisor.

A sanction of dismissal can apply for the first offence of being absent without permission provided that the employee was absent for three continuous working days without a valid reason.

a) b)

Absent without leave; Desertion: Leave the work place without intending ever to return; leave without help or support; abandon; leave without authority or permission.

6.4.2 Offences related to Control at Work

a)

Poor Time Keeping and related offences

a) b) c) d) b)

Reporting late for work Leaving work early Extended or unauthorised breaks during working hours Persistently committing all or any of the above.

Sleeping on duty

Any employee who is found asleep on duty, whether or not such an action constitutes a hazard to the safety and health of the offender or others or leads to damage to Company property, shall be deemed guilty of an offence.

c)

Negligent Loss, Driving, Damage or Misuse of Company property

a)

Negligent loss of Company property: any act whereby an employee, through carelessness or negligence, loses Company property or is unable to account for it satisfactorily. Negligent driving; driving a company owned or rented vehicle without due care, whether such an act results in an accident or not.

b)

c)

Negligent damage to Company property: any act whereby an employee through carelessness or negligence causes or allows Company property to become damaged. Misuse of Company property: using Company property for a purpose other than that for which it was intended.

d)

d)

Unsatisfactory Work Performance

a)

Carelessness: Performance of a task or duty without the exercise of due care an attention. Negligence: failure to exercise proper care and regard to the manner of discharging duty to the extent that tasks have to be repeated or equipment or persons are at risk of damage or injury. Inefficiency: failure to carry out work at the required standard or failure to complete tasks within the given reasonable time limits, without reasonable cause. This includes poor supervision. Loafing: passing time idly or failing without reasonable cause to complete tasks set.

b)

c)

d)

6.4.3 Offences Related to Indiscipline or disorderly behavior.

a)

Disobedience and related offences

a) Refusing to obey an instruction: deliberate refusal to carry out a lawful and/or reasonable instruction given by a person in authority and within the area of his jurisdiction. b) Failing to obey an instruction: failure to obey a lawful instruction given by a person in authority and within the framework of his/her jurisdiction.

c) None-compliance with established procedure / standing instructions: failure to follow establish procedures. d) Abuse of electronic / Data facilities: excessive use / abuse of e-mail and communication facilities; storage and/or transmission of material of discriminatory nature; storage and/or transmission of pornographic material; unauthorised monitoring and interception of electronic documentation.

6.4.3.1

Abuse and related offences

a) Abusive Language: The uttering of any words or the publication of any writing expressing or showing hatred, ridicule or contempt for any person or group of persons.

The offence I more serious when it is wholly or mainly because of his/her/their nationality, race, colour, ethnic origin, sex, marital status, religion, creed, political opinion, social or economic status, degree of physical or mental ability, sexual orientation or culture.

b) Insubordination: Insolence towards a superior shown by action or words.

6.4.3.2

Disorderly behaviour and related offences

a)

Disorderly behaviour: Indulging in rough or unruly behaviour or practical jokes whether or not such behaviour endangers the safety or health of others or the smooth running of the work place.

b)

Threatening violence: Threatening to do physical injury to any other person.

c)

Fighting: Physical contact between two or more persons, engaging in or inciting a group of persons to indulge in disorderly behaviour or wilfully to damage Company property.

d)

Riotous behaviour: Unruly behaviour between two or more persons, engaging in or inciting a group of persons to indulge in disorderly behaviour or wilfully to damage Company property.

e)

Sexual Harassment:

Any unwanted or unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individuals employment, causes unreasonable interference with an individuals work performance or creates an intimidating, hostile or offensive work environment.

f)

Discrimination:

Any act whereby an employee discriminates against any other employee or group of employees on the grounds of nationality, race, colour, ethnic origin, sex, marital status, religion, creed, political opinion, social or economic status, degree of physical or mental ability, sexual orientation or culture.

Willful loss, damage or misuse of Company property

Willful loss: any act whereby an employee willfully or deliberately loses or causes Company property to be lost.

Willful damage: any act whereby an employee willfully or deliberately damages, or allows or causes damage to Company property.

Willful misuse: any act whereby an employee willfully or deliberately misuses Company property.

6.4.5 Offences Related to Dishonesty

Disciplinary cases involving the following offences must be reported to the Human Resources Officer.

Bribery or Corruption

Giving or receiving or attempting to give or receive any bribe or inducing or attempting to induce any person to perform any corrupt act.

False Evidence

Deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing.

Forgery and uttering

Falsifying or changing any documentation with fraudulent intent or attempting to do so.

Uttering or attempting to utter fraudulent or false statements or documents.

Misappropriation

Applying or attempting to apply to a wrong use or for any unauthorised purpose, any funds, assets or property belonging to SBCGT.

Theft of or unauthorised possession of Company property

Stealing or attempting to deprive SBCGT permanently of its rightful ownership.

Being in possession or disposing of Company property without due authorisation.

Fraud

The unlawful making of a misrepresentation with intent to defraud, which causes actual or potential prejudice to another party.

Breach of Trust

Actions or conduct of an employee that cause a reasonable suspicion of dishonesty or mistrust and for which there exist extraneous evidence to prove a breakdown in the relationship of trust between the concerned employee and SBCGT. This will include a situation where the conduct of the employee has created mistrust, which is counterproductive

to SBCGTs commercial activities or to the public interest, thereby making the continued employment relationship an intolerable one.

6.4.5 Industrial Action

Intimidation

Any act by an employee, whether by himself or in concert with other persons (whether or not such other persons are employees of SBCGT), to intimidate any employee with the object of compelling him to take part in any strike or other action which interferes with the normal operations of SBCGT. Intimidation is an offence even if all the procedures for the settlement of the industrial disputes and grievances and the Law have been exhausted.

Sabotage

Any deliberate action by an employee that results in the interference with the normal operations of SBCGT by damaging any machinery, or equipment or by interrupting any supplies of power, or services necessary to the operations.

Illegal Strike/Lockouts

Participation in any illegal strike action, lockouts, boycott or any other form of work disruption not in accordance with the applicable statute that constitutions a blatant refusal to work. Examples of such action include, inter alia, work-to-rule: overtime ban; go-slow.

Any disciplinary matter referred to in this subsection will not preclude SBCGT from exercising its common law rights to terminate the employment contract in the case of illegal industrial action. 6.5 Penalties

Classification of Penalties:

6.5.1 6.5.2 6.5.3 6.5.4 6.5.5 6.5.6 6.5.7 6.5.8

Verbal Warning Recorded Warning Severe Warning Final Warning Dismissal Demotion Transfer Alternative Penalty to Dismissal

6.5.1 Verbal Warning Any supervisor may, at any time and at his discretion, reprimand an employee without completing a complaint form, in which case there will be no entry made on the employees disciplinary record. When a verbal warning if given, the supervisor must ensure that the employee being reprimanded is made aware of the existence and function of the Disciplinary Code. A verbal warning is usually issued where the offence is of a minor nature.

6.5.2 Recorded Warning

Application: This may be given for a repetition of an offence for which an unrecorded warning has been given, or it may be given for a first offence. Validity Period: The employee must be informed that the warning will remain in force for a period of six months.

6.5.3 Severe Warning

Application: Given for a repetition of the same offence or similar offence during a period when a recorded warning is still in effect, or for a first offence of a more serious nature. Validity Period: The employee must be informed that the warning will remain in force for a period of nine months.

6.5.4 Final Warning

Application: Given for a repetition of the same offence or a similar offence during a period when a severe warning is still in effect or depending on the nature thereof, for a first offence of a serious nature. In the case of an employee being found guilty of an offence of a dissimilar nature within the prescribed period, the hearing official may, at his discretion, issue a comprehensive final warning on the understanding that if any offence is committed within the next 12 months, it will render him liable for dismissal. Validity Period: A final warning is effective for a period of twelve months. The employee is advised in writing by the official hearing the case of the period applicable and reminded that a repetition of the offence or the committing of any similar serous offence within the prescribed period will render him liable for dismissal. A copy of the notice shall be forwarded to the Human Resources Department.

6.5.5 Dismissal

Application: Dismissal is the final sanction and should be used:

when other forms of disciplinary action have failed; when an employee on a final warning commits a serous offence; when the offence committed is of such a serious nature that it amounts to a serous breach or repudiation of the employees contractual obligations; in cases relating to dishonesty e.g. theft, fraud or corruption; in the case of any employee who is absent from work without permission for a period of three continuous working days or more. In this case the employee will be dismissed in absentia after the third day if no reason for such absence is receive. Should the employee return to work after he has already been dismissed, he may request that the case be re-opened?

Once an employee has been dismissed in accordance with the procedure contained in this Code, under no circumstances will he be considered for re-employment should he re-apply at a later stage. If it is discovered that a dismissed employee has obtained re-employment with SBCGT either inadvertently or through deception, his services will be terminated immediately.

6.5.6 Demotion

Demotion is not an acceptable corrective action and is therefore, not used as a punishment for a specific offence. It is used only where the employee is unable to meet the requirements of his present job but is suitable for continued employment in a lower capacity.

6.5.7 Transfer

Transfer is not permitted as a tool for disciplining employees. A transfer shall only be effective in terms of SBCGTs Conditions of Employment and Service. Transfer, as the result of the outcome of a disciplinary action, will be considered in special circumstances.

6.5.8 Alternative Penalty to Dismissal

A comprehensive final warning may be considered at the discretion of the Hearing Chairperson as an alternative penalty to dismissal in instances where an employee is found guilty of an offence of a dissimilar nature to a valid final warning on his personal record.

The sanctioning of a comprehensive final warning will only be considered in circumstances warranting corrective action and liaison between the Hearing Chairperson and the Human Resources Officer is encouraged before such a penalty is imposed.

A comprehensive final warning will be valid for twelve months from the date of the imposed penalty.

The Role of the HR Officer

The maintenance of workplace discipline is strictly a function of line management. Human Resources Officer should be available to assist line management where required. As far as possible, the Human Resources Officer should, in consultation with the official chairing hearing, ensure that disciplinary action taken is procedurally and substantively fair.

The Human Resources Officer should be available to advise and assist all employees on all disciplinary matters.

The Human Resources Officer must not impose penalties, nor hear appeals in respect of own subordinates or immediate Supervisors.

The Human Resources Officer is responsible for:

Ensuring that the complaint form properly identifies the offence and is otherwise correctly completed Ensuring that the alleged offender is aware of the charges against him/her Interviewing and taking statements from the Complainant, accused and any witness Investigating the domestic circumstances of the alleged offender, when necessary Ensuring that all facts are collated marshalled and presented without bias. Advising the Complainant, accused, witness (as) and representative of their roles and rights Ensuring that documentation pertaining to the hearing is forwarded to the appropriate officials Advising the accused and his representatives of progress made for cases that are pending or in recess.

The Human Resources Officer may at his/her discretion recommend that a concluded disciplinary case be reopened in instances where gross non-compliance to the Disciplinary Code is evident. The Role of the Representative

Any employee, against whom formal disciplinary proceedings are held may at his request, be accompanied at the initial and any subsequent hearing by a colleague from the same working section, or in the case of an employee who is represented by a properly constituted consultative committee, by a member of such a committee. An employee who is a Union member may be represented by the appropriate Part-time or Full-time Shop Steward, in accordance with the provisions of the Recognition and Procedural Agreement between SBCGT and Union. Legal representation or representation by non-Company persons during internal Company enquiries is not permitted.

The representative has no right to insist on the employee being accompanied if he does not wish it; that is, a representative will attend a disciplinary hearing only at the request of the employee. He will be invited to comment on the evidence.

The representative may ask question and cross-question during the disciplinary hearing, but may not give evidence during such hearings.

The representative may make submissions to the hearing official on the guilt or otherwise of the accused prior to the hearing official making his finding. He may also make submissions to the hearing officials on the mitigating factors to be considered and on the penalty to be imposed.

Should the representatives comments at the hearing be of such a nature as to warrant reconsideration of certain matters or further investigations, time should be allowed for this and, if necessary, the enquiry recessed. 6.5.9 Dismissal Procedure

a) b)

A direct Department Manager may recommend that an employee be dismissed. For the purpose of the dismissal procedure, a direct Department Manager is defined as an employee graded D-lower or above who has a supervisory link to the employee concerned.

c)

Following a disciplinary hearing outcome being advised to the employee who results in the recommendation for a dismissal and the employee accepts the recommendation; the Hearing Official will refer the case documentation for review to the relevant Manager for the department concerned. The relevant Manager will endeavor to review the case within forty-eight hours/two working days and endorse or reject the recommendation. If the recommendation for dismissal is endorsed, the hearing official shall refer the recommendation to the Human Resources Officer who will review the case with the relevant Head of Department. If the recommendation for dismissal is rejected, the case shall be referred to the Human Resources Officer and the original hearing official. The relevant Manager may sanction the recommendation in writing, thereby effecting dismissal, or reject it. If the recommendation is rejected, action 8.6 above shall be applied. The employee shall be notified of the decision verbally by the Hearing Official. If the employee is dismissed, the employee will be notified in writing. This notification shall be signed by the relevant Executive Committee Member. Every employee has the right to appeal against a decision to dismiss him/her. The appeal procedure will apply as outlined in Section 9.

d)

e)

f)

g)

h)

i)

6.6

Disciplinary Appeal Procedure

6.6.1 Every employee has the right of appeal against any decision which involves any entry on his/her disciplinary record and which may thus affect his future employment prospects.

6.6.2 Any employee who wished to appeal against the outcome of any disciplinary hearing against him/he must notify the Human Resources Officer in writing within two days of being notified of the outcome of the disciplinary hearing. The right of appeal must be based on one or more of the following appeal grounds.

Dispute of Guilt Severity of Penalty/Mitigating Factors Procedural Inconsistencies New Evidence 6.6.3 Appeals against Verbal, Recorded and Severe Warnings in terms of 7.6.2 (i) and (ii) may be referred to the official at the level above the official who originally heard the case. The decision of the Appeal Hearing Official shall be final and no further appeal level shall be available. 6.6.4 Appeals against recommendations for Final Warnings and Dismissals shall be heard by the relevant Executive Committee member. If the sanction was originally imposed by a Manager, the accused may request the Disciplinary Review Committee to review the case. 6.6.5 Appeals in terms of 7.6.2 (iii) shall be reviewed by the Human Resources Officer may refer the case back to the original Hearing Official for further investigation and/or rehearing, where after the procedure as per 7.6.3 and 7.6.4 above shall apply. 6.6.6 Appeals in terms of 7.6.2 (iv) shall be heard by the original hearing Officer and thereafter in terms of 7.6.3 and 7.6.4. The decision as to whether the grounds of appeal constitute new evidence shall rest with the Human Resources Officer with the employee representative. 6.6.7 The employee shall be present at the appeal hearing and shall be entitled to a representative in terms of Section 6 of the Disciplinary Code, except at the Disciplinary Review Committee level, where the procedure as outlined under 7.6.9 and 7.6.10 shall apply. 6.6.8 The Disciplinary Review Committee shall be chaired by the Operations manager and shall comprise the Human Resources Officer and Senior representatives of other Department. . 6.6.9 When an employee requests that his case be referred to the Disciplinary Review Committee for a review, he may at the same time request that he or his representative be invited to make representation or motivate his grounds of appeal in person. The Disciplinary Review Committee shall however review each case on its own merits and take decisions independently. 6.6.10 The Disciplinary Review Committee shall have the authority to uphold or reduce a penalty imposed by the Head of Department. It will also have the authority to impose

a more severe disciplinary action should it be found that the offence committed warranted a more severe penalty. The Disciplinary Review Committee may refer a case back to the Head of Department or the Human Resources Officer for re-hearing or for further investigation. 6.6.11 The decision of the Disciplinary Review Committee will be final and should also be read in conjunction with 7.6.13. The Human Resources Officer shall inform the employee of the decision of the Disciplinary Review Committee. In addition, the Chairperson of the Disciplinary Review Committee will notify the employee of the decision, in writing. 6.6.12 Should an appeal against dismissal be successful, the employee will be reinstated retrospectively to the date on which his services were terminated and he will be advised in writing to return to work. This also applies where an appeal against a dismissal is reduced to a warning in terms of 7.6.3 (i). 6.6.13 In the event of the dismissal being upheld by the Disciplinary Review Committee, the dismissal shall be effective from the date of the employees services were terminated by the Head of Department. The Chairman of the Disciplinary Review Committee shall inform the employee in writing of the outcome of the Committees Review. 6.6.14 It should be noted that the Disciplinary Review Committee, referred to above, should only have the authority to review disciplinary cases that have been dealt with by Manager. Classification of Offences Guide to Disciplinary Action

Nature of Offence

1st Offenc e

2nd Offenc e

3rd Offenc e

4th Offenc e

Absenteeism Absenteeism Desertion Offences related to control at work Poor time keeping Sleeping of duty VW/RW SW SW FW FW DC DC SW DC FW DC

Sleeping on duty

RW

SW SW SW

FW FW FW

DC DC DC

Negligent loss, driving, damage or misuse of Company RW property Unsatisfactory work performance Offences related to Indiscipline or Disorderly behaviour Disobedience & related offences (general) RW RW

SW

DC

Abuse and related offences Abusive language Insubordination Disorderly behaviour and related offences Disorderly Behaviour Threatening violence Assault/attempted assault Fighting Riotous behaviour Sexual Harassment Discrimination Alcohol and drug offences Intoxication while on duty Wilful lose, damage or misuse of Company property Offences related to dishonesty Bribery or corruption False evidence Forgery and uttering Misappropriation Fraud Theft of / unauthorised possession of Company property DC DC DC DC FW FW DC DC FW FW FW FW FW FW DC DC DC DC DC DC DC SW SW FW FW DC DC

 Breach of Trust

DC DC DC

Industrial Action Intimidation Sabotage Illegal strike/lockout FW DC FW DC DC

The schedule of sanctions merely provides a guideline and the following factors shall be considered when arriving at a decision: Disciplinary record, length of service, position of employee, any other mitigating or aggravating circumstances raised at the hearing.