24 June 2022
Progressive discipline is a system of discipline where the penalties increase upon repeat occurrences. The concept is embedded in schedule 8 of the Labour Relations Act which states:
“The courts have endorsed the concept of corrective or progressive discipline.
This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.
Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.”
Progressive discipline ranges from written warnings, final written warnings, and ultimately, dismissal. All these “sanctions short of dismissal” could be applicable to various types of misconduct. It is a form of rehabilitation and a system in which employees are encouraged to correct their behaviour, rather than proceeding to immediate dismissal of those employees. There are however expectations to the application of progressive discipline and in certain circumstances dismissal on a first offence is suitable.
A common misperception is that progressive discipline entails that all types of misconduct must be met with the same chronological issuing of warnings. In other words, a written warning to final written warning and once discipline has progressed, dismissal. This is, however, incorrect. The application of progressive discipline depends on various factors, for example, it is generally accepted that the more qualified or experienced an employee is, the greater the expectation is that misconduct such as negligence will not be committed, therefore the appropriate sanction for an employee of this status would not be the same sanction as an employee who is for example, less experienced.
Depending on the circumstances, there are certain situations where a final written warning would be the appropriate sanction for a first offence. There are also circumstances where dismissal is not the appropriate sanction despite the employee having a valid final written warning for a similar offence. Item 3(5) of the Code of Good Practice on Dismissal reads, “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances, the nature of the job and the circumstances of the infringement itself”. From the above, having a valid final written warning for a similar offence is not the only factor taken into account when determining if dismissal is the appropriate sanction for the conduct.
As mentioned above, the employer may even abandon the process of progressive discipline, due to the severity of the misconduct. This notion is included in schedule 8 of the Labour Relations Act: The Code of Good Practice: Dismissal, which reads:
“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”
This view was elaborated on in The Waterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others where the Labour Court held that the general principle is that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employment relationship will entitle the employer to end the employment relationship.
It is a misconception that should an employee receive a written warning subsequent to being on a final written warning for a related offence, that the final written warning then becomes null and void.
Receiving a written warning while being on a final written is not automatically considered as “one step back” on the theoretical ladder of progressive discipline. As stated, the purpose of progressive discipline is corrective in nature and should the employee commit a similar offence, all previous infractions are one of the factors that can be taken into account when determining if dismissal is the appropriate sanction.
There are various aggravating or mitigating circumstances which should also be considered when determining what degree of sanction is to be imposed, and all situations should be considered individual and the respective merits evaluated while considering the requirement of consistency as well as any applicable disciplinary code.
Due to the above, disciplining an employee can become a complex and confusing task, and should you require assistance, please contact Invictus Group on 0861 737 263.
