How to deal with less serious workplace transgressions
The answer to this question is in the interpretation of Paragraph 3(2) of Schedule 8 to the Labour Relations Act – The Code of Good Practice: Dismissals.
This paragraph states that:
The (labour and labour appeal) 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.
On a literal reading of the text “graduated disciplinary measures such as counselling and warnings” there is a hint to counselling preceding warnings. This has not been endorsed by our courts. What has been endorsed is that the employee must have known and understood what is required of them before issuing them with warnings. Should something not be covered in induction or specific policy, like a disciplinary policy, which the employee was made aware of, it is required that the employee be informed of the rule of requirement as a first step.
Informing the employee that the rules exist and what is expected from him/her need not be by formal counselling, though it is preferred as it provides a paper trail. Paragraph 3(3) of The Code of Good Practice: Dismissals, provides that formal procedures do not have to be invoked every time a rule is broken, or a standard is not met. Informal advice and correction are the best and most effective way for an employer to deal with minor violations of work discipline.
The aim must be to create a work environment where the employer’s rules create certainty and consistency in the application of discipline. It is for this reason that the rules, explanations, and expectations must, where possible be specific, measurable, achievable, relevant, and time-bound (SMART). Once the employee knows the rule(s) and expected standard, the corrective disciplinary action by means of warnings must be applied consistently. Employers must treat all employees in the same fair manner and not make meat of the one and fish of the other.
Normally, for less serious transgressions, the employer will use:
- Counselling to establish the rule and standard
- First written warning
- Second written warning
- Final written warning
- Dismissal by formal disciplinary hearing
In instances where the rule is known to the employee and the transgression is more serious, it may be appropriate to issue a final written warning for the first offence. The facts and seriousness of the offence will dictate the action from the employer. The employer may also take other factors into account – see Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) – where the Labour Appeal Court found that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongness of his/her conduct.
Once the Employer issued a Final Written Warning, the employee had his/her last chance in respect of that transgression – see XSTRATA SA (Pty) Ltd v CCMA and others (JA 50/2014) where the Labour Appeal Court found that a final warning is precisely what the name suggests and the employee should not have any expectation on further warnings, the next step could be dismissal.
