It is an unfortunate reality that even the most diligent and fair employer or business-owner will at some point be required to apply disciplinary action or issue warnings in situations in the best interest of the company and the employee.
Disciplinary procedures and warnings, when appropriately used and managed, is not intended to punish a wrong but to correct wrong actions.
Warnings can range from a verbal warning to a final written warning depending on the circumstances under which it occurred or the severity of the misconduct or offence in need of correction. The severity of a warning can progressively be increased if the employee keeps repeating the offences or continues to commit offences against the established disciplinary code despite previous attempts to rectify the situation. Warnings issued should always follow the company’s established Disciplinary Code and it must be on record that the employee being sanctioned has seen, read and understood the disciplinary code. Employers are encouraged to discuss the company’s Disciplinary Code with Employees on a yearly basis.
Item 7 (b) of Schedule 8 to the Labour Relations Act provides:
If a rule or standard was contravened, whether or not:
(i) The rule was a valid or reasonable rule or standard
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer
The drafting and dissemination of the company disciplinary code, as well as record that all employees have been informed of the disciplinary code is the first step in a vital record keeping process to fairly and lawfully apply disciplinary actions which may lead to warnings. The lack of such a paper trial may invalidate any defence against an unfair business practise/dismissal claim at the CCMA from the start.
A written warning must, at minimum, contain the following,
- the identity of the employer and the employee
- details of the offence: nature of, date of and time of offence
- the terms of the warning and the period of validity
- a clear statement of the corrective actions required by the sanctioned employee
- a clear statement of the consequences for the sanctioned employee should he/she fail to fulfil the requirements as stated above or repeated offenses within the warning period
- verifiable proof (in the form of the employee’s signature or witnesses) that the warning was delivered and received by the employee.
A warning should only be issued after a fair disciplinary process, and this process must be started immediately after the employer finds out about the transgression, conducted and completed as soon as possible to enable the employer to issue a warning (if warranted) with the most specific, concise information possible. This will help to avoid any future problems that may lead to a challenge at work or at the CCMA.
It is vital to any business and employer to keep accurate, detailed record of every disciplinary action and warning, including verbal warnings, documenting the charges and actions taken. To not do so imposes a huge risk to the employer should any disciplinary action be challenged at the CCMA, which could lead to monetary awards or reinstatement of a sanctioned employee.
In case law, refer to Gcwensha v CCMA & others, where the employee had been dismissed for gross negligence. Diligent recordkeeping by the employer evidenced that the employee had several previous warnings for incompetence, negligence and inefficiency. Gcwensha was on a current warning when he was dismissed. The court found that the employee had a ” deplorable record” of transgressions and misconduct, which the employer was entitled to take into consideration when deciding on the appropriate sanction to be taken for the current transgression. The employer was able to defend this action and avoid reinstatement of the employee because of the verifiable history of warnings he had on file.
The opposite was true in NUMSA v John Thompson Africa (Pty) Ltd  7 BLLR 932 (CCMA). It was the lack of proper record keeping that lead to the employer being ordered to reinstate the employee who was dismissed on charges of ‘wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.’ The employee appealed the dismissal according to the employer’s established procedures, but at the appeal hearing there were no records of the proceedings or evidence tabled at the disciplinary hearings to make available to the chairperson to consider. It could not be proven that the employment relationship had irretrievably broken down due to the employee’s behaviour and it was ordered that the employee be reinstated.
Schedule 8 (Code of Good Practice – Dismissal) requires that employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action. An employer that does not do this, goes to the CCMA with little ammunition – and his case becomes quite indefensible.