Ensuring disciplinary warnings are fair and legally compliant

Disciplinary warnings serve as a tool for employers to communicate expected standards of conduct and performance to employees. It is a formal document from an employer to an employee communicating that their conduct or performance is not meeting expectations. It also indicates that further corrective action may occur if the unacceptable conduct is repeated.

The Code of Good Practice in Schedule 8 of the Labour Relations Act is clear that employers must first make use of progressive discipline in an attempt to correct an employee’s behaviour, before dismissal may be considered. Warnings thus serve as a corrective measure rather than punishment. However, where necessary, punishment must be used as a legitimate deterrent in the maintenance of discipline. In certain instances, the company reserves the right to impose the most severe sanction on an employee without having to follow the principles of corrective and progressive discipline. But how and for which transgressions warnings must be issued and for how long such warnings remain valid are left to the employer to determine, bearing in mind that the validity period of a disciplinary warning can be seen as unreasonably long, depending on the context and the specific circumstances. If a warning remains active for an excessively long time, it can hinder this process by creating a perpetual threat and preventing the employee from truly “starting fresh.”

It is accepted that a Disciplinary Code and procedure is necessary for the efficient running of company business, the safety and fair treatment of all employees, and for ensuring sound labour/management relations. The code aims to provide guidelines for management to ensure the fair, just, and uniform application of disciplinary measures and to provide a reference for management engaged in applying discipline.

There are four basic sanctions that can be imposed against any employee. It is important that sanctions be imposed as soon as the employer becomes aware of transgressions. A delay can result in the allegation that the employee’s actions have been condoned, and instituting disciplinary action at a later stage could be viewed as unfair conduct on the part of the employer.

In order of severity the four sanctions are:

4. Verbal warnings: In the case of a minor offence, a superior should conduct an informal disciplinary interview with the employee which may result in a verbal reprimand. A verbal warning is a reminder to the employee that if he/she continues to commit the same offence, more serious and formal disciplinary action will follow. Although informal, it is the first stage of the disciplinary action process and record should be kept of any verbal reprimands issued. The recommended validity period for a verbal warning – three (3) months.
5. First and second written warnings: If verbal warnings fail, management should give the employee a formal written warning. First and second written warnings are more formal acts and warn the accused employee that a repetition of wrongful behaviour or a more serious offence can result in a final written warning. The recommended validity period for first and second written warnings – six (6) months.
6. Final written warnings: A final written warning is the last warning an employee can expect before a more serious disciplinary penalty may be imposed or before dismissal. The purpose is to give the employee a final chance to correct his/her behaviour. Managers should be cautious not to issue more than one final written warning for the same or similar offence should the employee repeat the misconduct whilst having a valid final written warning. It is recommended that a disciplinary hearing or a formal discussion be held prior to issuing a final written warning. The recommended validity period for a final written warning – 12 (twelve) months.
7. Summary dismissals: When a series of progressive and/or corrective measures, such as the issuing of the above sanctions, has not produced the anticipated effect, or when an employee is alleged to have committed serious misconduct, the employer may then consider dismissal as a penalty. It is strongly recommended that the company conducts a formal disciplinary hearing prior to dismissing the employee.

A warning document, whether verbal or written, should contain key elements to ensure clarity and legal defensibility. A written warning should include what the misconduct or performance issue is, the changes needed with a timescale, what could happen if the changes are not made, and how long the warning will stay in place. The warning should also include the identity of both parties, the nature and date of the offense, the validity period of the warning, a clear statement of required action, and the consequences of failing to rectify the situation.

Though it is preferable that an employee should sign for acknowledgement of receipt of the sanction imposed, an employee cannot be forced to do so. If the employee refuses to sign, a witness can sign to confirm that the employee is aware of the sanction and that the allegations have been explained to him/her. An employee’s refusal to sign does not affect the validity of the sanction.

An employee’s disciplinary record serves to paint a picture of the employee’s dedication (or lack thereof) and their attitude towards the company and its authority. Schedule 8 requires employers to keep records of disciplinary action taken against employees, but it does not distinguish between current and lapsed warnings.

Lapsed warnings can influence future disciplinary action. Although they cannot be the sole basis for a dismissal, under appropriate circumstances, they may be taken into account. Most often, such warnings would serve as aggravating evidence to show that the employee exhibits a pattern of behaviour which the company cannot correct by use of progressive discipline. It is however advisable for companies to deal with lapsed warnings in its disciplinary code and procedures, to provide that lapsed warnings will remain on an employee’s file and may be taken into account in dealing with future transgressions.

Warnings must be clear, concise, and must leave no doubt in the mind of the employee what management’s stance is and the consequences of failure to rectify the situation. If a disciplinary warning is not properly issued, several legal consequences can arise for the employer, most notable being that the employee could challenge the validity of the warning at the CCMA as an unfair labour practice.