When workers commit violations in the absence of company policy

We started a new company with 15 workers close to two years ago. Due to our primary focus on selling products, we failed to come out with a formal Code of Conduct to discipline workers. We now have Now, we 23 workers and are dealing with two employees that have incurred excessive absences, tardiness, and also committed theft, with alcoholism emerging as a problem.

What would be a good reference policy so we can use legal means to discipline them? — Not Helpless.

A little girl is out in the backyard brushing her pet dog’s teeth. Her father stops by and says: “What are you doing?” She says: “Well, I’m brushing Blackie’s teeth.” She pauses and tries to calm her father. “Don’t worry Dad. I’ll put your toothbrush back like I always do.”

We often ignore many things as we focus on more important things. That’s until we discover something unusual and ask for the reason behind it. Until that question arises, we’ll never know the answer.

The same thing could happen in employee discipline, which people managers hate to do. It becomes doubly difficult when an organization doesn’t have a policy, like a Code of Conduct that governs the behavior of the workers.

Fortunately, you’re not exactly helpless. In the absence of any formal management policy, you can always refer to Article 297 of the Labor Code and its implementing rules (Article 297 is the renumbered 292 under Department Advisory No. 01-15; the implementing rules of Book VI of the Labor Code are found in D.O. No. 147-15), according to labor law expert Domingo Anonuevo.

“It can also be asserted that the right to discipline is an inherent management prerogative; hence, there need not be any reference to the Labor Code and its implementing rules when an employer exercises this prerogative.

Anonuevo, who is also a law professor at De La Salle College of Law, says: “Department Order No. 147-15 is very explicit that when an employer initiates disciplinarily action against an employee, the former must serve upon the latter a “written notice xxx specif(ying) causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any.”

“Failing to so allege a ground mentioned in Article 297, in the absence of a company policy, may make the employer liable for payment of nominal damages for not following the prescribed disciplinary procedure.”

That covers substantive due process. Likewise, you have to consider following the procedural aspects as well as required by the law. This includes the issuance of Notice to Explain that specifies the number of days that a worker is given to submit a formal explanation. For termination of employment, it has been acceptable that five days is reasonable enough for an employee to clear his name, among other requirements.

Study your approach very carefully. It is better to consult a labor lawyer on this. Don’t delay the preparation of your company’s Code of Conduct. One caveat though. It’s not advisable to hire a consultant who may have the indecency to pluck out a template from somewhere. It’s better if you can compare notes with a friendly competitor and suppliers. If not, hire a consultant who can objectively design a policy suited for your industry. Then make him sign a warranty that his proposal is an original policy and not copied from some place.

In the meantime, there are many extra-legal means that you may want to consider like allowing the employee to resign so that he can receive terminal pay and be issued a clearance and certificate of employment.

You don’t have to be an instrument for perpetually destroying the careers and lives of employees for their mistakes. Consider what you’re going to say to the employee beforehand. Whatever happens, hold the session in private. An office or conference room which is away from your work station or the employee’s is always suitable for a disciplinary meeting.

Bring with you another department manager as a witness to the meeting.

If an employee gets emotional, wait until he calms down before you proceed. This doesn’t mean however that you have to endure a 15-minute diatribe. And if he decides to resign, require the person to write his resignation on the spot with the date retroactive to 30 days to make it regular.

You can allow him to use the company’s computer under your supervision to avoid any incident that would compromise the integrity of your data. Do it on the spot. Waiting for another day may turn out to be not to your own liking.

ELBONOMICS: Work to manifest your integrity. Live to impress yourself.