By Nicolene Erasmus, Senior Consultant, SA Labour Guide
Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.”
By progressively increasing the severity of the warnings, an employee will be motivated to reform unacceptable behaviour. For the majority of employees, progressive corrective discipline is effective. There are, however, those employees who do not take heed of their employer’s disciplinary code. These employees have been found to be reformed only once employers have resorted to a very desperate and last resort: the issuing of a comprehensive, consolidated or general final written warning. This type of warning has the effect that any contravention of the employer’s disciplinary code in future will result in the employee’s dismissal.
In NUFAWSA obo Fortuin v Cori Craft Group (Pty) Ltd [2008] JOL 22602 (BCFMI), the applicant was subject to a comprehensive final written warning which he received as an alternative short of dismissal. This, according to the respondent, meant that if the applicant were found guilty of any subsequent transgression, dismissal would follow. When the applicant was found guilty of absenteeism and subsequently dismissed, he argued that a comprehensive final written warning could be considered only when an employee was found guilty of a similar offense. The respondent denied this. The commissioner held that the applicant was aware of the meaning of a comprehensive final written warning and that this was used in the company to avoid dismissal. The applicant’s dismissal was found to be fair.
A similar approach was followed in National Union of Metalworkers of South Africa obo Tlou / Vanchem Vanadium Products (Pty) Ltd [2015] 5 BALR 525 (MEIBC). The applicant was dismissed after being found guilty of using abusive language after a superior had given him an instruction. The disciplinary code prescribes dismissal only for a second offence of this nature. Since the applicant was subject to a valid general final written warning, he was dismissed. The commissioner pointed out that the concept of giving a collective or general written warning for a number of past, not necessarily related, offences is not unknown. An employer can place employees on terms by means of a final written warning that refers to all the past offences, including the latest offence, and stating that dismissal will result, should there be any future breach of the employer’s disciplinary code.
The applicant in Witcher / Hullets Aluminium [2003] 12 BALR 1377 (MEIBC) was also subject to a consolidated final written warning which was issued to him for twice coming to work under the influence of alcohol. This consolidated final written warning followed a final written warning for driving a vehicle in a production area and causing damages to the amount of R50,000. Thereafter, when the applicant was absent without leave on two separate occasions, the respondent dismissed him.
The arbitrator held that the normal rule relating to the use of past warnings is that the offence for which the employee is dismissed should be similar to the offences for which the employee received the previous warnings. However, where the employee’s pattern of behaviour clearly indicates a consistent disregard for the rules of the company, the concept of a consolidated final warning is acceptable. An employer cannot continue to tolerate ongoing misconduct by an employee, who escapes the consequences of that ongoing misconduct by committing a variety of offences that are not related to each other. A time must come when the employer can fairly say to the errant employee that no further misconduct of any nature will be tolerated, and that dismissal will follow should any further breach occur.
Contrary to this, one commissioner held that a blanket final written warning is too broad. In National Union of Metalworkers of South Africa obo members / Kirk Marketing (Pty) Ltd [2017] 6 BALR 672 (CCMA), the applicants were instructed to complete evaluation forms. They refused to do so and were issued with final written warnings. When they refused a second time, the employer proceeded with formal disciplinary steps and issued a blanket warning which had the effect that the applicants could be dismissed for committing any offense. This, the commissioner held, is contrary to the question of fairness and progressive discipline and ordered the respondent to delete the word “blanket” in the second final written warning. The second final written warning ought to be directed and applied in respect of the offences for which they were issued – the offences of not complying with a reasonable instruction as well as insubordination and not to other offences.
The commissioner noted that it was recorded in the disciplinary code that the sanction for a second offence (of not complying with a reasonable instruction) would be met with a dismissal. Also, many other chairs would have dismissed the applicants and their dismissals would have been regarded as fair. In the light hereof, it is perplexing that a blanket warning would be regarded as too broad. As far as the commissioner’s view that a blanket warning “is contrary to the question of fairness and progressive discipline and that the second final written warning ought to be directed and applied in respect of the offences that they were issued for”, one could argue that it would be difficult to explain the concept of “progressive” discipline if exactly the same warning is to be issued when an employee commits (exactly) the same offence a second time. Since the concept of progressive discipline entails a process of using increasingly severe steps to correct an employee’s behaviour, the ensuing sanction should be more severe than the previous warning.
When employers do resort to a comprehensive, consolidated or general final written warning, it is suggested that:
- The comprehensive, consolidated or general final written warning is issued as an alternative to dismissal.
- The comprehensive, consolidated or general final written warning is issued where an employee is found to have a propensity to commit offences at convenient intervals falling outside the period of applicability of the written warnings. The following serves as an example: an employee commits an offence for which the disciplinary codes prescribe a first written warning for the first offence, a final written warning for the second offence and dismissal for the third offence. The employee is issued with a first written warning. After the warning has lapsed, the employee commits the same offence and receives yet another first written warning. This happens a third time. It is suggested that an employer may issue a comprehensive, consolidated or general final written warning at the point where the employee could have been dismissed, had it not been for the fact that the previous warnings had lapsed.
- An employee who is subject to a consolidated final written warning may be dismissed thereafter only if they commit a breach which cannot be said to be trivial. The commissioner in Witcher indicated that the breach which brings about their dismissal must be a breach for which a written warning would be an appropriate sanction.
- The concept of a comprehensive, consolidated or general final written warning must be explained to an employee. The employee must clearly understand that any future transgression will result in dismissal.
For more information contact Nicolene Erasmus at nicolene@labourguide.co.za or info@labourguide.co.za
