The application and development of disciplinary processes, to ensure their validity and effectiveness, must be carried out in accordance with normative and jurisprudential postulates, of which 4 key aspects are disclosed when conducting them.
- PURPOSE OF THE DISCIPLINARY PROCESS.
Disciplinary processes are regulated by the Substantive Labor Code in articles 104 to 125. This regulation indicates that the process must be embedded in the company's internal regulations, and its application seeks compliance with the functions, duties, obligations, and prohibitions established generally for all personnel and specifically for the position, through the imposition of sanctions.
Thus, the disciplinary process aims to educate personnel about the policies, processes, procedures, guidelines, functions, and instructions given by the employer, which were partially or not fulfilled.
This education also allows the employer to discern the company's shortcomings regarding internal publicity, effectiveness, simplicity, and currency of the processes being executed.
- TYPICALITY.
For the imposition of a sanction, and before initiating a disciplinary process, it is necessary to ensure that the worker is aware of the actions that cause harm to the company, the normal development of its activities, the work environment, and the health and integrity of both colleagues and themselves.
Such actions must be contemplated in the internal regulations and also be classified as minor or serious misconduct. Only in this way can the employer reproach their commission or omission through the imposition of sanctions.
Likewise, the sanctions that may be imposed by the employer must be stipulated, indicating which correspond to minor misconduct and which to serious misconduct, without such sanctions affecting physical or psychological integrity or undermining the worker's dignity.
- PRE-EXISTENCE OF A DISCIPLINARY PROCESS
Actions considered minor or serious misconduct by the employer must be contained in the internal regulations. Similarly, the process or step-by-step procedure to be followed as a disciplinary process must be included.
This disciplinary process will reflect the step-by-step procedure that the employer must follow before applying the disciplinary process, clearly establishing: (i) the person or position authorized to conduct the disciplinary process and who will resolve or make the decision, (ii) the time within which the process will be managed from its initiation, indicating at each stage the maximum period for each party to respond. (iii) content of the documents and manner of conducting the hearing of charges and defenses. (iv) the worker's term to object to the decision made and the person or position that will resolve such objection on the merits.
- EXHAUSTION OF THE PROCESS.
The disciplinary process is carried out in five steps:
First; corresponds to the commission by the worker of one or more actions considered as misconduct. At this stage, the company collects and gathers the documentation supporting the action or omission, as well as the order, instruction, process, procedure, circular, manual, or document containing the description of how to do it, or the obligation not to do it.
Second; corresponds to the initiation of the disciplinary process, which is based on the documentation and action related in the previous point. The initiation of the disciplinary process must be formally notified to the worker, preferably in writing.
This document will clearly contain: (i) the charges, i.e., the misconduct committed by the worker and stipulated in the Internal Regulations, (ii) the facts, (iii) the evidence, (iv) the date on which the hearing of defenses will be held.
The hearing of defenses may be conducted: (i) virtually – in which case the link will be included in the notification document, (ii) in person – indicating the time and place where the hearing will be held, (iii) in writing – indicating the maximum delivery date. These forms will be previously stipulated in the disciplinary process contemplated in the Internal Regulations.
TIP: It is necessary to individualize each disciplinary process carried out, so each document issued will contain the worker's name, ID number, position, and a number to identify the process, preferably a sequential number. This sequential number may be per worker or generally for all processes carried out in the company.
Third; the hearing of defenses agreed upon in the notification document of the initiation of the process is the opportunity for the worker to argue, justify, or contest the reproached conduct, providing evidence and witnesses.
At this stage, the employer has the opportunity to question the worker about their conduct, which will allow determining whether such action is justified or, on the contrary, arose from the worker's will, thus allowing the grading of the misconduct to be applied.
This hearing is conducted by the position indicated in the Internal Regulations.
Fourth; after the hearing of defenses, the employer studies the responses to the interrogation, the free version, and the evidence provided by the parties to the process, issuing a document with a definitive and reasoned decision indicating the sanction to be imposed.
The reasoning of the document will clearly and coherently explain why the reproached conduct results in the imposed sanction and not another, indicating and giving value to the evidence presented by the parties.
TIP: All documents sent to the worker must be duly reasoned by the employer and clearly reflect that the disciplinary process is the reproach of the conduct.
Fifth; as a guarantee of constitutional postulates, when notifying the sanction to be imposed, the document will indicate a term within which the worker will have the opportunity to oppose the imposed sanction through an appeal. In such case, it must be resolved following the guidelines of the fourth point.
The second instance decision may improve or uphold the first sanction established, but may not make it more burdensome for the worker. This document must be signed and managed by the person authorized to process disciplinary matters in second instance.
TIP: When the worker refuses to sign the documents generated by the disciplinary process, they may be signed by two witnesses who will record the worker's refusal to sign, the date, and the time.
Nataly Muñoz P. – AZC CONSULTING ATTORNEY