South African Labour Law: Which warning is appropriate for which disciplinary offence?
By: Gordon Angus
Tags: Human Resources, Labour Law, Employment Law

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.