24 March 2023
Employers often refrain from using disciplinary warnings or, conversely, misuse disciplinary warnings, as they are unsure of what the law states regarding them. The Labour Relations Act 66 of 1995 puts it that the standards and performance of a company are enforced through disciplinary warnings.
Disciplinary warnings should not be seen as punitive but as a corrective measure. Warnings are a notification that further corrective measures could follow if the unacceptable conduct continues or if the employee does not meet the required performance standards.
When should a warning be issued?
A disciplinary warning could be appropriate when it has been established that an employee has contravened a rule. The employer should establish how serious a particular offence is with reference to their disciplinary rules, the effect such actions have and consideration of the precedent set within the company as the appropriate sanction to ensure consistency.
Certain offences might warrant a gradual approach of warnings being issued, while other more serious offences might warrant a summary dismissal as a first offence.
Previous disciplinary warnings are considered aggravating factors when deciding on an appropriate sanction after the conclusion of disciplinary action. As such, employees with a poor disciplinary record may be fairly dismissed should they persistently repeat an offence they have already been disciplined for.
Case Study
Regarding NUMSA OBO Mabuslea vs Premfit Engineering cc (2011, 7 BALR 733), the commissioner stated that it is accepted that a previous warning can be considered if it is for an offence similar to the one that the employee is currently being disciplined for.
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 employees receiving a final warning for similar behaviour. However, the Labour Court reinstated the dismissed strikers because the final warnings had expired when the employees committed the second offence.
What happens if employees fail to sign the warning letter?
It is also important to note that an employee’s refusal to sign a warning letter does not invalidate the warning. In such an event, a witness will be requested to sign the warning, stating that the employee refused acceptance of the warning.
Employees must ensure that they comply with the company’s disciplinary code and other relevant policies and procedures at the workplace, including common practice. The onus is on the employee to ensure that he/she is aware of the requirements in terms of the disciplinary standards in the workplace.
Warnings as a Corrective Action
Schedule 8 Code of Good Practice in the LRA elaborates on the importance of using a corrective or progressive approach when it comes to workplace discipline. Efforts should be made to correct the behaviour of employees through a gradual approach to warnings.
Dismissal should be reserved for cases of serious misconduct or repeated offences. It is clear that while employees should be protected from arbitrary action, employers are also entitled to satisfactory conduct and performance on the part of their employees.
Employers must seek expert advice when deciding which route to follow when disciplining a misbehaving employee.
Contact Invictus on 0861 737 263 for any queries/assistance regarding Disciplinary Warnings or for us to conduct your inquiries.
