Home Page ->
Legal Articles -> Final warning without previous warnings?
Welcome to Scorpion’s Legal Tips! Every week we’ll share stories of injustice and show you how you can strike back legally.
Warnings in the workplace are meant to give you a chance to correct the behaviour that led to the warning and if you do not, further disciplinary action may be taken. Can you get a final written warning without any other warnings before? Scorpion Legal Protection recently got asked this question on Facebook by someone who was given a final written warning for hanging up the phone on her employer when he was cursing at her. Scorpion Legal Protection answers.
For the specific situation mentioned above, at first glance a final written warning does not seem justifiable, reason being that the employer was violating the employee’s right to dignity and his conduct can also amount to harassment as per the Employment Equity Act (EEA). Had the employee reacted by swearing back at her employer then insubordination and insolence could come into play. Hanging up the phone was the correct choice to allow the employer to cool down, although this was not the result because the employer retaliated with a final written warning. The employee can challenge the final written warning on the basis of the EEA as harassment.
This depends on the employer’s code of conduct. Some actions and behaviours are serious enough that the employer is within his rights to give a final written warning for a first-time offence, meaning that no other warnings were given before this. The Labour Relations Act (LRA) is clear though that harsh disciplinary action like final warnings and dismissal should only be for cases of serious misconduct or repeated offences. Very serious offences could include behaviours like: being absent from work for 3-4 days without reason, absence on the day/shift before or after a public holiday without permission, failure to carry out company health and safety policies and procedures, being under the influence of alcohol or drugs at work or receiving undeclared money or gifts from clients or suppliers. However, each employer must have their own code of conduct that makes clear to employees what kinds of offences will result in what kinds of disciplinary measures.
The circumstances of the issue also matter. For example, if an employee who works in an office falls asleep at his desk, it is less serious than if a truck driver falls asleep behind the wheel and causes an accident. Another example is smoking, if you smoke in an office it could be seen as less serious than smoking in a workplace that deals with flammable materials.
According to the LRA, the courts have endorsed the idea of corrective or progressive discipline. This means that the purpose of the discipline is to help employees understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of progressively more serious disciplinary measures, so it could start with verbal warnings or counselling and get more serious if the behaviour continues or does not change, like written warnings and eventually final written warnings. For example, your employer should not issue a final written warning if you are late for work one day. This would be excessive and unfair. However, if you are continually late for work and your employer has already warned you about coming in late and you continue to come in late, your employer can take more serious disciplinary action.
You may feel that the warning is unfair and for this reason, you do not want to sign it. Signing the warning does not mean you agree with it, it just means that you have acknowledged receiving it. If you refuse to sign the warning, the employer can just issue it to you in front of a witness and ask that witness to sign.
Final written warnings should remain valid for 12 months (according to The Disciplinary Procedure For Misconduct from the CCMA). The employer is not allowed to keep the warning against your name indefinitely, the warning must expire in a set period of time.
You may also be interested in:
Fixed-term contracts and warnings
Disciplinary hearings explained step by step
Step-by-step guide on going to the CCMA
If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 15 June 2021
If you prefer to leave us an online query, please complete the form below and we will call you back.
Please select an enquiry type
Membership card / policy update query
Income Tax query
Last will & testament
Please select a complaint type
Poor service/Rude staff