Final warning

Phil Davel

Question:

I work as a site manager for a construction company. This morning I suddenly received a final written warning because I was working in my office yesterday and not on site. I haven’t received any verbal or other warnings and I feel that I don’t deserve a final warning. Meanwhile, my project manager has written a letter to the company’s management to say that he had instructed me to complete urgent paperwork. I still feel that I was treated unfairly and I have refused to sign the warning. What are my rights?

Answer:

1. Firstly, it is important to understand that the fact that an employee does not sign a written warning does not make the warning invalid. It is still valid. By signing the warning, the employee does not necessarily acknowledge guilt, but merely acknowledges receipt of the document. Because written warnings are more formal than verbal warnings (and it is recorded in writing), it serves as proof that the warning has been issued (if it becomes necessary to follow the disciplinary steps).

2. Secondly, legislation does not stipulate that a final written warning has to be preceded by a verbal warning, then a first written warning, and only then a second written warning. It is a misconception and the steps to be taken are usually determined by the severity of the transgression. This will be recorded in the company’s disciplinary code and policy.

Schedule 8 of the Labour Relations Act (Act 66 of 1995) does provide a few guidelines. Item 3(1) stipulates, among other things, that the disciplinary rules of employers must ensure certainty and consistency for enforcing discipline. It requires that the standard according to which actions are measured is clear and that it is made available to the employee in such a way that it is easy to understand. Certain rules and standards might be common knowledge and therefore do not have to be communicated beforehand. Therefore, it is best to refer to the company’s disciplinary code.

3. Lastly, if an employee receives a warning, he/she basically has two options:

a) He/She could accept it and continue with his/her work. This is usually the best option for three reasons:

i. It is simply a warning and does not involve a change in the status quo, as would, for example, be the case with a demotion or dismissal.
ii. A warning is only temporary. Usually a warning expires after a period of six to 12 months. Once again, it depends on the company’s policy or on what is stipulated in the warning. This means that the warning is only valid for that period and only for that specific transgression. The courts have underwritten the validity period of warnings because it would be unfair to hold transgressions against employees indefinitely (ad infinitum).
iii. You are protecting your job. Although an employee has the right not to accept a warning, such conduct could portray him/her in a bad light, which would not be desirable for job protection and/or promotion. This is an important point of view to keep in mind. This also applies to lodging an internal grievance.

b) The employee may question the fairness of the warning and ask that he/she first be granted a thorough and fair hearing. The issuing of a written warning must usually be preceded by at least a thorough investigation, where the employee is given the opportunity to explain his/her side of the matter and, if necessary, to give evidence.

It seems that in this case a thorough investigation did not take place before the written warning was issued and, therefore, it was issued prematurely. This can be deduced from the employee’s argument that he had acted on the orders of his project manager and he could provide the relevant letter to management as evidence. The best option in this case would be for the employee to request a fair hearing. However, the employee should bear in mind that the chairperson of the hearing could decide to impose a harsher penalty. In other words, it would be a calculated risk.

For any further enquiries regarding written warnings, please call Solidarity’s legal experts at 0861 25 24 23.

Posted in: My Rights