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A Final Warning To Employers: Don’t Misuse Final Warnings

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Ivan Israelstam

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of how the law allows them to use such warnings. In labour law the main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve. The following will assist employers to use warnings as a means of improving employee conduct and performance without infringing employee rights:

What is a disciplinary ‘warning’?

A disciplinary warning is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead it is a notification that punishment or other corrective measures could follow.

When is the giving of a warning appropriate?

When it has been established that a less serious offence (one with relatively mild potential consequences) is committed it is most often appropriate to issue a warning to the employee. The level of warning (oral, written or final warning) to be used depends on the level of seriousness of the offence and on whether previous valid warnings have been given.

When is a warning inappropriate?

Where the offence is very mild a counselling may be better than a warning. For example, if an employee is five minutes late for work for the first time a mild rebuke or counselling session will suffice and is less time consuming for the employer.

Where an offence is very serious or a final warning has already been given, then in some case, a warning is unlikely to have the desired effect, and stronger discipline may be appropriate.

Can warnings be cancelled?

The disciplinary policy of some employers allow employees to appeal against warnings. Even where this is not so the employee concerned is entitled to refer the warning to the CCMA or bargaining council. If the arbitrator finds the warning to have been unfair he/she is empowered to remove the warning.

Is the employer entitled to combine a warning with other measures?

The LRA is silent on this question. It would be unfair to punish an employee twice for the very same offence (i.e. for the same incident). However, as a warning is not, in my view, a punishment it can be argued that a warning could fairly accompany another corrective measure. For example, where a driver is guilty of damaging the employer’s vehicle it may be appropriate for the employer to give the driver a refresher driving course but also to warn him/her that, should he/she again damage employer property, stronger action will be taken.

Can an employee be dismissed for a repeat offence after having received a final warning for a similar offence?

The answer to this question is ‘yes’ provided that:

  • There is no reasonable alternative corrective action to the dismissal and
  • The final warning is valid

When is a final warning valid in terms of being usable in justifying a subsequent dismissal?

There is a point of view that a disputed final warning cannot be used as an aggravating circumstance to justify a subsequent dismissal. This view is linked to the notion that the employee, when disputing the dismissal can, at the same time, dispute the validity of the final warning that motivated the dismissal. However, I am of the alternative view that should the employee wish to dispute a final warning, he/she can only do so within 90 days of having received that warning. To be allowed to raise it later at the unfair dismissal arbitration stage is to me unfair unless condonation for the lateness of disputing the warning has been properly applied for and has been granted.

However, the employee would have the right to argue at any stage that the final warning was invalid if the warning had passed its expiry date by the time the subsequent incident of misconduct took place. In the case of NUMSA and Others vs Atlantis Forge (Pty) Ltd (2005, 12 BLLR 1238) the employer dismissed a group of employees who had embarked on an unprotected strike. The dismissal was based largely on the fact that the employees had previously received a final warning for similar behaviour. However, the Labour Court reinstated the dismissed strikers because the final warnings in question had expired by the time the employees committed the second offence.

Wise employers therefore tread very warily before dismissing employees even if they have received final warnings.

To buy our e-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via ivan@labourlawadvice.co.za or 011-888-7944.

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