How many written warnings should be issued before dismissal?
Published in Labour Law · 5 July 2022
Very often employees assume that the employer must issue them with three warnings before they can be dismissed for misconduct. This misconception is shared with many employers as well because it has been preached to us repeatedly for as long as we can remember. What you don’t know is that this is simply not the case.
Warnings, counselling and staff training have all been implemented over the years in an attempt to enlighten and assist the workforce. Employers once had all the power and could take any action they deemed fit with no consequences and employees had no recourse. Now, if you make a mistake or behave badly at work, you will be warned and given a chance to learn from your mistakes. These mistakes and bad behaviour fall under various categories of misconduct and require different and appropriate action.
In order for an employer to decide what the suitable sanction for employee misconduct is, he must first decipher the seriousness of the misconduct committed. For instance, an employee who comes in late to work may be issued with a verbal or written warning whereas an employee who disobeys a direct instruction may be issued with a final warning or even dismissed on the very first offence.
Why is this?
The purpose of disciplinary action is not solely punitive. Disciplinary action in the form of Counselling Sessions, Verbal and Written Warnings also act as measures to reform the guilty employee. However, reformative disciplinary action may only be effective in the event that the misconduct is of a less serious nature and the employee’s behaviour may be changed or stopped.
On the other hand, where an employee is found guilty of serious misconduct, even though it may be the first offence, it may not be likely that such behaviour or actions can be altered. Several misconducts that many businesses deem as serious are: Negligence; Insubordination; Abuse of company property, Dishonesty/ Theft and Absconding. In these extreme instances, the actions of misconduct could result in the employment relationship being irreparably damaged and the employee’s actions would most probably not be redeemable – resulting in the severe sanction of dismissal.
Employers need to consider the type of work being done, the position of the employee and the industry in which the business operates. This is crucial when deciphering the seriousness of the employee’s misconduct. For example – an employee who is employed as a general worker in the Wholesale and Retail Industry, if found sleeping on duty, may not necessarily be charged for misconduct constituting a dismissal on the first offence. This will not be the case for an employee who is employed as a guard or watchman in the Security Industry who is found sleeping on duty. In the latter instance the employee may be dismissed on the first offence in light of his position, the type of industry and the inherent requirements of the job.
In order to properly regulate the relationship between the employer and the workforce, business owners need to put in place detailed Disciplinary Codes and implement Company Policy and procedure documents. These documents should establish a general Code of Conduct and state the do’s and don’ts for employees together with the possible sanctions and consequences for employee misconduct.
Creating and outlining rules and regulations encourage a healthy working environment where the employer’s rules are made clear and the employee understands the way in which he must perform and behave in the work place.
This article does not constitute legal advice and is based on the author’s interpretation of legislation and case law. Book a consult for legal advice or assistance pertaining to your specific matter.