South African Labour Law: How to issue a written warning and what happens when warnings expire

In my last post, we covered verbal warnings and how to issue one. We explained that there are informal and formal verbal (or oral) warnings, the difference being that a formal verbal warning is reduced to writing and a record of its issue is therefore kept.

A written warning is a more severe step in the corrective process of applying discipline in the workplace. If an employee commits a relatively serious act of misconduct or if he or she has already been issued with a verbal warning and has now committed the same or a similar offence again, the employer may consider issuing a written warning. The written warning is very similar to the formal verbal warning, and is issued in much the same way, as described below. However, as the misconduct and subsequent corrective action is now more severe, the validity period of the warning would generally be increased. Usually, employers would look to have their written warnings remain valid for six to nine months. Courts have endorsed the principle of validity periods applying to warnings (although the periods of validity are set at management’s discretion), as it is considered unfair to hold an offence against an employee indefinitely. However, many believe that once a warning expires, it ought to be removed from the employee’s file and discarded. This is not advisable, as expired warnings form part of the employee’s employment history and may be relevant for purposes other than progressively disciplining an employee for repeated offences. For example, an expired warning may be used as proof of an employee’s knowledge of a particular rule — if an employee has been issued with a verbal warning for smoking in a non-smoking area and repeats the offence, he or she cannot claim to not be aware of the rule against smoking in non-designated areas, as this is an issue for which he or she has been disciplined before.

Also, the Labour Appeal Court has held that expired warnings may serve as proof of an employee’s propensity to commit certain types of misconduct. This is very common with regards to timekeeping offences, for example, where a recalcitrant employee may be habitually absent from work without permission, although will behave for long enough in between offences for warnings to expire. It is therefore advised that expired warnings be kept on the employees file in case they are needed.

The steps that we recommend when issuing a written warning are:

1. Instruct employee to attend meeting. This instruction can be issued verbally and informally, but the process must be considered to be fairly serious by the parties. Inform the employee that you would like to see him or her in your office or in the boardroom at a certain time.
2. Inform employee of his or her right to representative. Explain to the employee that you are going to be having a discussion about his or her behaviour and that he or she has the right to call a representative of his or her choosing to attend the discussion. This representative may be any fellow employee and excludes any outside representatives such as consultants, lawyers or trade union officials.
3. Explain the infringement and the reason behind issuing the warning. Remember the purpose of the disciplinary action being taken is to correct the employee’s behaviour. In order to do that, you need to explain what the standard or rule is and that the employee has broken the rule. You’re not issuing the warning to punish the employee — if you take this approach, you will get a more negative response from the subordinate. However, if you are issuing a written warning for a repeated offence for which the employee has already been disciplined, it should be pointed out to the employee that the employer is concerned that previous corrective action (the issuing of a verbal warning) has not worked.
4. Allow an opportunity for the employee to explain him or herself. The employee should be given a fair and reasonable opportunity to explain his or her actions. Since the issuing of a formal written warning is challengeable in the CCMA, the employee ought to be given a reasonable opportunity to state their case. If the matter appears to be complex, an employer may consider conducting a formal disciplinary enquiry in order to ascertain the truth and deal with evidence and witness testimony. However, this is not a legal requirement.
5. Issue the warning. A written warning form should then be filled out and handed to the employee. The employee and the representative should be asked to sign in receipt of the warning. This means that the employee is required to sign the warning to signify that he or she was received it, even if they do not necessarily agree with the warning being issued. A signed warning does not preclude an employee from appealing against it, nor does it invalidate the warning. However, if the employee refuses to sign the warning despite it having been explained to him or her that he or she is simply signing in receipt, then don’t escalate the issue — simply note on the warning that the employee has refused to sign and counter sign it (it’s good in this situation to have a witness sign as well).
6. Inform the employee of his or her right of appeal. The employee has the right to appeal against any disciplinary action taken, including a written warning. Inform the employee of this right and the timeframes associated with this, as stipulated in the company’s appeal procedure.
7. Make a copy for employee.
8. File original warning.