By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The Code of Good Practice: Dismissal in Schedule 8 of the LRA explains that warnings are corrective measures for teaching employees the employer’s standards of conduct and work performance and for giving them a chance to improve. Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of what the law sees as appropriate.
When is the giving of a warning appropriate?
When an offence with a relatively mild potential consequence is committed it is most often appropriate to issue a warning to the employee. The level of warning (oral, 1st written or final warning) to be used depends on the level of seriousness of the offence and on whether previous valid warnings have been given for a similar offence.
Can an employee be dismissed for a repeat offence after having received a final warning for a similar offence?
The answer to this question is ‘yes’ provided that:
- There is no reasonable alternative corrective action to the dismissal and
- The final warning is valid.
A final warning would be valid if it was given for an offence similar to the new one, has not expired and was given prior to the occurrence of the new offence. That is, the employee must have been given a chance to heed the previous warning.
In the case of Cashbuild vs Dyani (Lex Info, 6 August 2025. Labour Court case number PR277/22) the employer issued the employee with a final warning for poor work performance in respect of offence A. However, this warning was issued after the employee had committed the second offence, offence B. That is, although offence A had occurred before offence B the issuing of the warning for offence A had been delayed until 3 days before the end of the poor performance period in respect of the second offence (Offence B).
A key aspect of offence B was the employee’s failure to provide a customer with bags of cement for which he had paid long in advance. Having received the final warning for offence A the employee immediately arranged for the cement to be delivered to the client. The Court therefore found that it had been unfair for the employer to have relied on the final warning as an aggravating factor. Since warnings are not punishment but rather mechanisms to correct behaviour, the final warning for offence A in the current case was intended as a corrective measure. As that warning successfully served its corrective purpose it should not have been used against the employee. The Court therefore ordered the employer to reinstate the employee, to issue him with a final warning for the second offence and to pay him R103 075,64 in backpay.
This outcome acts as a reminder to employers that the use of warnings as aggravating circumstances is neither a mechanical nor a technical action. Where the employee corrects his behaviour on receiving a final warning it cannot be used to justify a dismissal.
Too many disciplinary decision makers are unaware of the above principle and do not understand the circumstances under which a final warning for a prior offence may be used to support an allegation that the employee has caused the employment relationship to become intolerable or has destroyed the trust relationship. They therefore urgently need to be trained in understanding the legal purpose and status of final warnings.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
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This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
