8 Frequently-asked questions about employee warnings
Schedule 8 of the Labour Relations Act (LRA) provides that, when employers deal with employee misconduct and poor performance, they use the corrective, progressive approach. The schedule provides for gradual disciplinary measures, including warnings and final warnings. The legal purpose of giving warnings is to inform and/or remind employees of the employer's standards of conduct and work, and to give them a chance to improve their performance.
1. What is meant by a 'warning'?
A 'warning' or 'employee warning' is an oral or written statement made by an employer informing the employee that his/her conduct or performance level is not acceptable and that if they don't meet the required standard, stronger measures will be taken. In this sense, a warning is not a punishment: it's a notification that punishment or other corrective measures could follow.
2. When should a warning be given?
You should give an employee a warning if it's been established that a not-so-serious offence (one with relatively mild potential consequences) has been committed. The level of warning (oral, written or final warning) to be used depends on the level of seriousness of the offence and if previous valid warnings have been given.
3. When is a warning not appropriate?
If the offence is very mild, a counselling session may be better than a warning. For example, if an employee is five minutes late for work once, a mild rebuke or counselling session will suffice and is less time consuming. Where an offence is very serious, or a final warning has already been given, then in some cases a warning is unlikely to have the desired effect and a stronger disciplinary measure may be appropriate.
4. What alternatives are there to warnings?
In addition to the counselling already mentioned, other corrective measures may be appropriate. These include, amongst others:
- Training,
- Treatment,
- Demotion,
- Suspension without pay, and
- Dismissal.
5. Can warnings be overturned?
Some employers' disciplinary policies allow employees to appeal against warnings. Even where this isn't the case, the employee concerned is entitled to refer the warning to the CCMA or bargaining council. If the arbitrator finds the warning to have been unfair, he/she is empowered to remove it.
6. Is the employer entitled to combine a warning with other measures?
The LRA is silent on this question. It would be unfair to punish an employee twice for the very same offence. However as a warning is not, in my view, a punishment it can be argued that a warning could fairly accompany another corrective measure. For example, where a driver is guilty of damaging the employer's vehicle it may be appropriate for the employer to give the driver a refresher driving course but also to warn him/her that should he/she damage employer property again, stronger action will be taken.
7. How long do warnings last for?
Depending on the employer's policy and normal practice a warning could last for three months to a year.
8. Can warnings for offences (which are not the same) be accumulated?
This is a highly contentious issue. Common practice has been that only offences of a similar nature can result in stronger disciplinary action. That is, in most workplaces, the employer's policy is that the manager can only progress to a higher level of warning if the previous warning was for a similar offence to the current one. However, the LRA doesn't specifically state that this is the way it must be done.
It's argued that schedule 8 indirectly suggests that only similar warnings should be accumulated because of the educative nature of the schedule's requirements when, i.e. it says that discipline is "a means for employees to know and understand what standards are required of them". This suggests that, for example, to give final warning for poor performance to an employee (in a cumulative nature) because he/she already has a warning for smoking indoors is not educative because a warning for smoking doesn't educate the employee as about good work performance.
There have been cases where the courts have accepted the progressive accumulation of warnings for unlike offences.
In the case of NUM & Mocha vs Amcoal Colliery (1999 case number JA15/99):
- The Labour Appeal Court accepted that employees who'd received final warnings for offences, not similar the current offence, could be fairly dismissed if they were found guilty of the current offence.
As I have not been able to find any more recent cases where this principle has been supported by the courts, employers need to act with great caution before accumulating warnings for non-similar offences.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
