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.
South African labour law, strongly influenced by the trade union movement, defines workplace discipline as corrective rather than punitive. For example, where less serious offences occur, discipline must be implemented in a graduated manner. In practice, this means that the employer should use counselling and progressively stronger warnings in order to get the employee in line with its rules.
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.
The level of warning (oral, 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. Where the offence is very mild a counselling may be better than a warning. For example, if an employee is five minutes late for work for the first time, a counselling session will suffice and is less time consuming for the employer.
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 available corrective action other than dismissal and
- The final warning is valid.
When is a final warning valid in terms of being usable in justifying a subsequent dismissal?
The employee would have the right to argue that the warning was invalid if it had passed its expiry date by the time the subsequent misconduct took place.
In NUMSA obo Mabuslea vs Premfit Engineering cc (2011, 7 BALR 733) the commissioner stated that it is accepted that a previous warning can only be taken into account if it is for an offence similar to the one that the employee is currently being disciplined for.
In the same Premfit decision the commissioner stated that it is accepted that a previous warning can only be taken into account if it is for an offence similar to the one that the employee is currently being disciplined for. Employers should therefore get legal advice on whether previous warnings are similar enough in nature to validate them for use in the current case.
However, in the very same year as the Premfit case decision, in Numsa obo Ngwenya vs KZN Motors (2011, BALR ) the commissioner found that, where the employer’s policy does not require expired warnings to be removed from the employee’s record or to be expunged, lapsed warnings may be taken into account when the offence is repeated.
This is a strange finding because it nullifies the purpose of the requirement for warnings to lapse, which purpose, I believe, is to provide the employee with a clean slate. As a result, I suspect that this decision could be overruled in future.
In view of the above employers are advised to train their managers to understand that the law gives employees a right to their jobs and that this right can only be interfered with if the employer has a legally valid reason and if the discipline is shown to have been corrective in nature.
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.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
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
