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When to give

Question:

I have an employee who posted derogatory comments on Facebook about his manager, calling him lazy and stupid.

I immediately arranged for a final written warning to be issued to the employee.

However, the employee refuses to sign the warning and claims that he has been treated unfairly as he should have received a first warning before being given a final warning. Have we made a mistake in giving him a final warning?

Answer:

Firstly, it is of importance to understand that a disciplinary warning is not a punishment.

According to Schedule 8 of the Labour Relations Act, disciplinary warnings are to be used as a corrective measure to grant employees an opportunity to correct and improve their conduct and so make employees aware of the standards of conduct and work performance expected of them.

Disciplinary warnings may range from a verbal warning or informal warning, to a written warning, to a final written warning, to dismissal.

It is not required by our law that these warnings are always required to follow consecutively, unless the employer’s disciplinary code unequivocally requires such order.

In general, therefore, depending on the severity of the offence, a final written warning can be issued for a first offence if such issue is reasonable.

Final written warnings should be issued for serious offences such as theft, dishonesty, absenteeism, bringing the organisation into disrepute etc.

As the name implies, a final warning to an employee implies that the employee can expect to be dismissed for a repetition of the type of misconduct for which the final warning was issued for.

This does imply that an employee may be issued with more than one final written warning should the nature of the misconduct be different, but the circumstances of each case will give guidance as to whether such are separate areas of misconduct or related.

An employee’s signature on a final written warning is not a prerequisite for the validity of a final written warning.

By signing a final written warning, an employee does not acknowledge guilt, but merely acknowledges receipt of the document, for procedural purposes.

Written warnings are more formal than verbal warnings, therefore, it serves as proof that the warning was given, but if an employee refuses to sign the warning, it does not invalidate the warning and the employer can provide proof that the warning was issued to the employee who refused to sign.

In your situation it does appear that there are grounds for the issuing of a final written warning to your employee. The refusal of the employee to sign does not invalidate your warning.

However, if you are still unsure of how to deal with this employee, consider consulting a labour specialist to help you ensure that your disciplinary procedures are correctly applied.

– Boitshoko Motsamai, candidate attorney, Phatshoane Henney Attorneys

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