By Ivan Israelstam, Chief Executive of Labour Law Management Consulting
Contact: (011) 888-7944 / 0828522973 | Email: ivan@labourlawadvice.co.za
Central to South Africa’s law of discipline is the entrenched principle that discipline of employees who have not committed gross offences must be progressive. This means that, where employees commit less serious offences, they must receive a series of corrective counsellings and warnings that become progressively stronger if the earlier corrective measures are not effective in ending repeated misconduct.
The main purpose of giving warnings is to remind employees of the employer’s standards of conduct and work performance and to give them a chance to improve.
A disciplinary 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 any further failure to meet the required standards will result in stronger measures being taken. In this sense a warning is not a punishment. Instead, it is a notification that further corrective measures could follow.
Where an offence is very serious or a final warning has already been given, then in some case, a warning is unlikely to have the desired effect, and stronger discipline may be appropriate.
The question then arises as to whether an employee may 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.
Many employers try to comply with the above legal requirements, especially when ‘normal’ misconduct has occurred. However, much fewer employers recognise that the principle of progressive discipline also applies when employees go on strike.
In the case of Shave and Gibson Packaging vs AMITU (Lex Info 28 May 2025. Labour Appeal Court case number DA21/23) 72 employees were fired for picketing in a non-designated area. This was considered their first offence. None of them had received warnings for similar offences. Despite this the Labour Appeal Court decided that their misconduct was so gross as to merit dismissal for a first offence. This was because the employer had offered the employees a reasonable place to picket, the Labour Court had interdicted the strikers from picketing in the prohibited area and the CCMA’s strike rules had confirmed that the picketing was to be confined to the demarcated area. Despite this the strikers had flagrantly disobeyed these requirements.
The Court therefore upheld the fairness of the dismissals. However, employers must not assume that this outcome means that all picketing related dismissals will be upheld. Employers will have to prove in each case that its strike rules were known to the strikers, were reasonable and consequent on real operational needs of the employer.
Also, where the employer has not obtained an interdict its chances of success in court will be reduced. This is because disobeying an interdict serves as a strong aggravating factor, something that employers are likely to need in view of the fact that many arbiters sympathise with the right of employees to picket. Therefore, in some cases, defiance of strike rules might require that a final warning be given before errant strikers are dismissed.
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