South African Labour Law: Which warning is appropriate for which disciplinary offence?

In another article, I covered the subject of progressive discipline, principle in South African law whereby employers are encouraged to correct their employees’ behaviour by applying a system of graduated disciplinary measures such as counselling and warnings and only if this fails, to dismiss. It is therefore commonplace to find that companies’ disciplinary policies will very often provide for verbal warnings, written warnings and final written warnings for various offences and reserve dismissal for the most serious forms of misconduct. Which warning, however, is appropriate for which offence?

Obviously, the least “severe” form of warning is a verbal warning. This form of corrective action is reserved for minor infringements which, when experienced as a single occurrence, are not too disruptive and don’t strain the employment relationship too greatly. A non-exhaustive list of offences that may warrant a verbal warning is provided below:

• Poor work performance, poor quality of work, low output/productivity
• Failure to maintain machine or vehicle for which employee is responsible
• Wasteful use of Company material and resources including stationery, electricity and water
• Absence from work station without good reason
• Late for work or leaving work early without good reason
• Failure to notify manager during any period of absence
• Breach of rule prescribed for good order, health or discipline
• Consuming food or beverages in unauthorised areas
• Smoking in non-smoking areas
• Littering
• Gambling or playing cards on Company property

Although the label given to this type of disciplinary action is a verbal warning, it is nevertheless formal and so a written record of the issuing of the warning should be kept. It is also highly advisable that disciplinary warnings be given validity periods, the length of which is up to the company to decide. A verbal warning is typically valid for about 3 to 6 months.

If the misconduct committed is slightly more serious, so it would warrant a more severe warning, as would a repeat of any of the offences listed above. The next step in a typical disciplinary process may be a written warning. Examples of offences which may warrant written warnings:

• Sleeping on duty
• Careless damage to equipment or materials
• Careless operation of equipment
• Failure to use protective clothing and/or equipment when required to do so
• Excessive personal use of Company telephones, email or internet
• Not observing health, safety or security regulations
• Absence from work 1–2 days without reason
• Disrespectful behaviour or use of insulting language or signs
• Failure to report in and out on commencement and ceasing of work

Bear in mind that the circumstances in each case will determine the appropriateness of sanction. Take, for example, the first offence in the list immediately above — sleeping on duty. If an employee who works in an office falls asleep at his desk, it may be viewed as being less serious than if a crane operator were to fall asleep at the controls of his crane, or a security guard who falls asleep whilst keeping watch over valuable property. The crane operator and security guard may well face much harsher disciplinary action (even dismissal), for obvious reasons. The typical validity period for a written warning is between 6 and 9 months.

For very serious offences, or for repeated minor misconduct, a final written warning may be appropriate. As the name suggests, this type of corrective action signifies that the employer is willing to give the employee a chance, albeit a single chance, to correct his or her action. This type of warning is, therefore, reserved for very serious offences, such as:

• Absence from work for 3-4 days without reason
• Absence on the day/shift before or after a public holiday without permission
• Wilful disregard of rules relating to Company vehicles or equipment
• Failure to carry out Company health and safety policies and procedures
• Use of Company internet for accessing or distributing offensive material or information
• Reckless or negligent driving on Company premises
• Injury to another through carelessness or negligence
• Abusive, aggressive, offensive and/or insulting language
• Under the influence of alcohol or drugs at work
• Unauthorised consumption of alcohol or administration of drugs (non-medicinal) on Company premises
• Smoking where it is hazardous to do so
• Receiving undeclared money or gifts from clients or suppliers
• Unwelcome promotion of any religious, political or ethical dogma in the workplace

It is highly advisable to not issue final written warnings lightly. If the employer were to relent on the final written warning already issued, it runs the risk of creating a double-edged sword, as firstly, warnings become ineffectual as employees believe that warnings are not to be taken seriously and secondly, if a dismissal does occur, it may subsequently be found to be unfair as no meaningful warning had been given. In other words, the final written warnings have to be taken very seriously. To this end the court in Afrisix (Pty) Ltd t/a Afri Services v Wabile NO 2014) 35 ILJ 668 (LC), held that employees may be dismissed if they commit offences similar to those for which they are on final warning at the time. Final written warnings usually carry a validity period of between 9 to 112 months.

There are, of course, offences that are so serious that they render continued employment impossible. Also, continuous and repeated misconduct will also, over time, eventually cause the employment relationship to become intolerable. The types of offences that would generally warrant the termination of the employment contract for a first offence would be:

• Refusal to work/ Refusal to obey a lawful and reasonable work instruction
• Abuse of sick leave, altering or submitting fraudulently obtained medical certificate
• Gross incompetence
• Gross insubordination/serious disrespect
• Wilful damage to, wilful neglect of, or destruction of Company property, tools, machinery etc.
• Negligence when operating machinery and causing potential danger to others or to self
• Assault, threat of assault or attempted assault
• Unauthorised possession of a firearm or other dangerous weapon at work or on Company premises
• Intimidation or incitement to violence
• Discrimination or intimidation based on race, sex, creed, political beliefs, sexual orientation or the like
• Harassment (including sexual harassment)
• Bribery or attempted bribery
• Theft of Company property or the property of colleagues
• Unauthorised possession of Company property or the property of colleagues
• Fraudulent timekeeping, including clocking in or out on a colleague’s clock card or allowing another to clock in or out on one’s own clock card
• Misrepresentation of particulars on application for employment
• Any action intended to defraud the Company
• Wilfully making false reports or entering false returns or entries on Company documents or to management
• Divulging confidential information to unauthorised persons relating to Company operations
• Bringing the Company into disrepute by words or actions
• Undertaking work with another firm or private work which is in direct competition with the Company without permission
• Having financial or other interests in the business of a supplier, client, competitor or any business which might be construed as being a conflict of interest with the Company without written authorisation
• Not declaring a financial or other interest of a close family member in the business of a supplier, client, competitor or any business which might be construed as being a conflict of interest with the Company
• Desertion or absence from work without permission or good reason for five or more working days
• Being found guilty of a criminal act which, in law, would be grounds for dismissal

As you can appreciate from considering the list above, these types of offences are usually detrimental to the employment relationship and warrant dismissal. However, no dismissal may be procedurally fair unless it is preceded by a formal disciplinary enquiry. Please note that this article is intended to serve as a guide to the reader — you may have good cause to institute different sanctions for the offences listed, but hopefully you will have a good idea after reading this post of what is considered fair corrective action to take for different types of misconduct.