The disciplinary power is one of the employer’s powers that characterize labor relations. This power is closely related to the immediate direction characteristic of the employment contract and its exercise must be carried out in strict compliance with procedural rules that guarantee the legitimacy of the measure to be imposed on the alleged offender, as well as ensuring the proportionality of the measure to be applied.
In criminal law, one of the main issues is the purpose of the penalty and when we deal with the disciplinary regime in the workplace, we cannot leave aside those aspects that have been developed for criminal law. It has been said that the penalty has a commanding purpose with respect to society because it calls individuals to refrain from performing certain acts contrary to a norm and also with respect to the individual because it invites him to modify his conduct in the future. In the framework of labor relations, the disciplinary sanction in labor matters has the same purpose, since it seeks to prevent the individual from repeating the same act in the future and to encourage the rest of the workers not to repeat such conduct.
However, in our experience, for the application of a disciplinary measure to have this effect, it is necessary that certain assumptions concur that legitimize the application of the measure. The first of these assumptions is that there is a due process in order to demonstrate to the group of workers and to the affected party that the company acted in a reasonable manner. Due process has a fundamental element, which is often not liked in companies but which is part of the legitimacy of the application of a sanction. This element is the right to a hearing, to the extent that within the disciplinary processes we generate the possibility for the worker to present his version of the story, we are humanizing the application of the disciplinary measure and consequently we generate a relationship of trust between the workers and the employer. This right to a hearing can be carried out in different ways and each work center will have to establish the rules that best fit its reality, but it is a real and expected fact that measures are established to guarantee its application.
The second element that should be considered to legitimize the disciplinary process is that the measures are applied by impartial third parties, after an investigation process, for example, a Disciplinary Committee or the human resources area, especially in the case of serious measures such as a suspension without pay or even dismissal. In our professional experience, it is common that in legal proceedings in which the existence of a just cause for dismissal is discussed, the employee states that the dismissal was due to enmity or personal issues with his immediate boss. This type of statement, without going into its veracity or falsity, what it reflects is precisely the lack of legitimacy in the application of the measure, an aspect that can be improved through the appointment of an entity in charge of this type of process and the reinforcement of internal investigation procedures.
It is a proven fact that to the extent that disciplinary processes in organizations are legitimized, the likelihood of labor disputes arising both during and at the end of the employment relationship is reduced. Remembering that such processes are not an end in themselves, but rather a fundamental part of achieving the company’s objectives.