Mohamed’s* boss is an eccentric man – he will often call meetings on the spot and expect people to drop whatever they are doing to attend. These meetings aren’t planned, so Mohamed never knows when they are going to happen. When he left the office during lunchtime to pick his kids up from school one afternoon, his boss called one of these meetings, and was furious when Mohamed wasn’t there. He threatened to fire him in front of all the other employees, and when Mohamed got back to the office, his boss said he needed to sign a written warning for missing the meeting. AZIKHIPHI! That’s not on! Warnings don’t work that way; employers must have a valid reason for giving a warning and there is a procedure that must be followed. Mohamed is scared of losing his job now, and doesn’t know if he should sign the warning or not. Scorpion Legal Protection’s labour specialists advise.

Scorpion Legal Protection’s advice

Schedule 8 of the Labour Relations Act (LRA) says that when employers deal with employee misconduct and poor performance, they must use the corrective, progressive approach. This means that the purpose of issuing a warning is to try and correct a situation, and the seriousness of the warning should increase with the seriousness of the offence or if an employee continues to commit offences. Warnings can’t just be handed out when the employer feels like it.

Firstly, the employer's Disciplinary Code and Procedure must be communicated to all employees in writing, in a language that the employees can clearly understand. It usually covers things like absenteeism, gross negligence, insubordination, illegal striking, drunkenness in the workplace, poor performance, theft and sexual harassment (but each employer will have its own Code of Conduct specific to their workplace, and it could cover much more). This Disciplinary Code and Procedure will explain what counts as a ‘serious offence’, as well as what disciplinary action can be taken if an employee breaks any of the rules listed under serious offences.

A written warning is usually resorted to when:

• A verbal warning has failed, and the employer feels he needs to take stricter action
• The offence for which the verbal warning was issued has been repeated
• There have been repeated offences of other misconduct
• The offence is considered serious enough to warrant disciplinary action stricter than a verbal warning.

A written warning should only be issued after having followed a fair procedure, where the accused has been given an opportunity to present his case and answer to the charges against him.

In Mohamed’s case, a written warning is unfair. It is his first offence (he has not missed a meeting before) and the meeting was unplanned, so he could not have been expected to know about it and plan his day around it. The disciplinary policy of some employers allows employees to appeal against warnings. If Mohamed’s employer is one of these, he should appeal the warning in writing to the HR department of the company. If his employer does not allow for internal appeals to warnings, Mohamed can refer the warning to the CCMA or relevant bargaining council. If they find the warning to be unfair, Mohamed’s employer will be forced to remove the warning from his professional record.

Tips:

• The employer’s Disciplinary Code and Procedure is very important in these cases, as it sets out what action will be taken for what kind of offence. For example, if the Code says that missing a meeting will result in a verbal warning, and Mohamed is given a written warning, then the employer is in the wrong for not following its own rules.
• Signing a written warning is NOT an automatic admission of guilt, it just means that you acknowledge having received the written warning. Your employer cannot force you to sign a written warning.

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