What legislation covers discipline and grievances at work?
The disciplinary procedure can be regulated in the contract of employment, the collective bargaining agreement and the internal policies of the company.
The Statute of the Workers regulates the disciplinary dismissal and the procedure that the employer must follow in this case.
What regime should an employer follow in a disciplinary or grievance situation?
The employer must follow the procedure that are established in the contract of employment, Collective Bargaining Agreement or internal policies of the company. As a general rule, in the case of workers' representatives, a procedure with more formalities and guarantees is required.
Is it frequent to find disciplinary regulations under the applicable CBA? What are the normal required steps for the employer?
Very often collective bargaining agreements regulate the misconduct, sanctions and the disciplinary procedure to be followed in each case.
In general, the steps to follow will depend on the need to initiate a contradictory inquiry or not. In the case of gross and very serious misconducts, the sanction must be communicated in writing to the worker and in the case of very serious misconduct the sanction must also be communicated to the representatives of the workers.
What happens if the indications contained in the CBA on disciplinary and grievance procedures are not followed?
If the formalities of the disciplinary procedure established in the Collective Bargaining Agreement are not complied with, in the event of a legal claim the judge may declare that the disciplinary sanction is unfair.
What should an internal dismissal disciplinary and grievance policy and procedure contain?
It is recommended that an internal disciplinary procedure policy include conducts that can be considered as minor, gross or very serious misconducts, the penalties corresponding to each one of the misconducts, the procedure to be followed by the company to apply sanctions guaranteeing the right of defense of the worker and the application of the principles of reasonableness and gradualness.
Can an employer simply dismiss an employee in cases of gross misconduct?
Yes, provided that the applicable CBA does not provide for a special procedure to be followed prior to dismissal
Should a disciplinary decision be made by an employee’s manager, a more senior manager, or by HR?
This will depend on how it has been regulated in the applicable Collective Bargaining Agreement or in the Internal Policy of the company. As a general rule, the disciplinary measure is applied by HR personnel that represent the Company or even by the employee’s boss, on behalf of the Company.
Does a disciplinary procedure have to be followed before issuing oral or written warnings to an employee or suspending them on full pay?
In general, a disciplinary procedure is not required for the application of an oral or written warning, unless the CBA or the internal rules provide for it.
Can an employer take disciplinary action against several employees when they cannot prove which employee committed the conduct in question?
No, in order to apply a disciplinary measure, it must be clearly known who committed the conduct and that it constitutes misconduct. In this case, the employer must initiate an investigation of the facts to identify the employee or employees who committed the labor misconduct.
How should an employer deal with a complaint of bullying?
The company has the obligation to take care of the health of its workers and to avoid this type of situation, therefore, once it receives this type of complaints it must investigate and adopt the pertinent measures, according to the established in the collective agreement applicable or In the internal politics of the company.
Can employers investigate cases of bullying and harassment in the workplace on the basis of anonymous witness evidence?
Yes, employers can establish within their policies against harassment the possibility of anonymous complaints, because in these cases the complainants could be afraid of the harasser's reprisals.
How far can an employer take into account misconduct that occurs off-duty when contemplating disciplinary action?
The Collective Bargaining Agreement may regulate that misconduct outside the workday is sanctioned by the employer when it is related to the work activity. However, as a rule, the worker's behavior outside the workday and the work center are part of his private life, therefore could not be sanctioned by his employer.