Linda* wasn’t aware of her company’s policy on streaming music. Her office is open plan, which means it’s always noisy. To try and block out the noise, she started streaming music on her work computer. Then one day out of the blue, the HR manager brings her a written warning to sign. He says that employees can’t stream music at work. Linda feels this is unfair and overly harsh. She doesn’t want to sign the warning, but she’s not sure if she has a choice. Scorpion Legal Protection discusses how the disciplinary process works.

Scorpion Legal Protection’s advice

A written warning is a form of disciplinary action by the employer because an employee has broken the company’s rules. The intention should be to correct the behaviour of the employee and can take many forms depending on the seriousness of the offence and whether or not the employee has broken this particular rule before.

The employer should establish how serious the offence is according to the company’s disciplinary rules. If the offence is not very serious, informal disciplinary action, like just talking to the employee about the issue, can be taken. The law does not specify that employees should receive any specific number of warnings, and an employee can be dismissed for a first offence if it’s serious enough, like theft. A written warning should only be issued after the accused has been given the opportunity to present his/her case and respond to the charges against them.

Linda was not given an opportunity to answer to the charges against her. So she can refuse to sign the warning letter if she wants, but it’s important to know that it won’t make the warning invalid. Signing doesn’t necessarily mean you acknowledge that you’re guilty, it just means that you acknowledge receiving the document. If Linda doesn’t sign the warning, her employer can request that a witness sign the warning, stating that she refused to accept it.

Depending on the company’s policies, Linda may be able to appeal the warning internally. If the company doesn’t have a formal appeals process in place, Linda can lodge a formal grievance. If these options aren’t available, Linda can approach the CCMA or relevant bargaining council for unfair labour practice, i.e. unfair disciplinary action short of dismissal on the basis that she was not given an opportunity to respond to the charge before receiving the written warning.

Employees have a duty to familiarise themselves with company policy, but employers also have the responsibility to ensure that all company policies are available to all employees at all times.

Tips:

• Written warnings are valid for 3 to 6 months
• Final written warnings are valid for 12 months
• A warning for one type of offence is not applicable to another type of offence. In other words, a first written warning for late-coming cannot lead to a second written warning for insubordination

If you have a query, follow us on our Facebook page and ask your question during our next Live Q&A (every first Thursday of the month).

* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.