TOE THE LINE OR FACE A “COMPREHENSIVE FINAL WRITTEN WARNING”

Progressive Discipline

The principle of progressive discipline is entrenched in Schedule 8: Code of Good Practice – Dismissal (the Code) found in the Labour Relations Act 66 of 1995 (LRA). More specifically Item 3 of the Code, that reads as follows:

“The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings”.

Generally, progressive discipline will be sufficient to correct the behaviour of employees who crossed the line of “acceptable behaviour”.

Comprehensive Final Written Warning

Born out of desperation, frustration or even good will, employers resort to issuing a “comprehensive/accumulated/consolidated/general/all-encompassing final written warning”!  Whatever term they choose to call it.

Is a comprehensive/accumulated/consolidated/general/all-encompassing final written warning lawful?

This question arises in Witcher / Hullets Aluminium [2003] 12 BALR 1377 (MEIBC) when the Applicant was dismissed for being absent without leave on two separate occasions. He was, at the time, on a “consolidated final warning” for absenteeism and other unrelated offences. It was explained by the Respondent’s witness that when an employee received a final written warning and there was a further breach of any type, the company did not dismiss, but rather issued a consolidated final written warning, which gave the employee some leeway to still be employed. He further said that it was like an extended final written warning.

The arbitrator noted that “the normal rule relating to the use of past warnings is that the offence for which the employee is dismissed should be similar to the offences for which the employee received the previous warnings”. He further indicated that “the concept of the consolidated warning, sometimes referred to as a ‘comprehensive final written warning’, is not unknown to the practice of industrial relations in this country”. He accordingly found that the concept was not unlawful and that the consolidated final written warning in this case was lawful, valid and understood by the applicant.

It was further confirmed that “an employee who is subject to a consolidated final written warning, may only be dismissed thereafter if he commits a breach which cannot be said to be trivial, i.e. the breach which brings about the dismissal must be a breach for which a written warning would be an appropriate sanction”.

Moving forward

Employers are bound by their Disciplinary Code and therefore do not have the liberty to issue comprehensive final written warnings willy-nilly. Such a comprehensive final written warning should be:

• in accordance with the company’s disciplinary code;
• issued as an alternative to dismissal;
• issued where the employee has a propensity to flout the disciplinary rules regularly; and
• an employee who is issued with a comprehensive final written warning should only be dismissed if they commit a further breach that is not trivial.

Toe the line

The default position or conduct should be to stay within the borders of acceptable behaviour. When you do however overstep the boundaries, be aware of the concept “comprehensive final written warning” and be alive to its consequences. When in doubt, rather err on the side of caution and contact MISA for the necessary advice.  

How to contact MISA during the lockdown?

Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions           UIFClaim@ms.org.za

Legal/Labour-related enquiries             Legal@ms.org.za

*  Legal Reception                                   0114763920

MISA Benefit claim-related enquiries   Claims@misa.org.za

Any other enquiries                                 Info@ms.org.za

Website                                                     www.misa.org.za

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