Help from a Labour Attorney on Issuing Warnings
Employers, especially smaller employers, often have sufficient cause for dismissing employees, but they fail in following the correct procedures for dismissals. Help from a labour attorney regarding aspects such as how to issue warnings, how many warnings must be issued before dismissal, and what the warnings must contain is essential to prevent unnecessary disputes.
If you are an employer, you know that you have the right to dismiss an employee for fair reasons and must do so according to the correct procedures. But, what are these procedures? The Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) provide the requirements and stipulations for dismissals, employment contracts, and more. However, interpretations of the laws without understanding every aspect of the laws can be dangerous, and you may end up defending your actions at the Commission for Conciliation, Mediation and Arbitration (CCMA).
Rather than guessing whether your actions are right, get help from a labour attorney in South Africa to ensure that when you take disciplinary action against an employee, you do so according to what the law stipulates.
We take a brief look at warnings as part of disciplinary action procedures below, but recommend getting professional legal help from a labour attorney in drafting your policy on disciplinary action and dismissals.
Nature of the Warning
The warning doesn’t necessarily have to be in writing. It can be a verbal warning, but it depends on the nature of the misconduct and the circumstances under which the employee has committed the offence. Of course, you also need to consider the seriousness of the particular offence. It is thus best to get help from a labour attorney in creating a disciplinary code in which you stipulate how many warnings must be given, what the final warning is, and when dismissal can take place.
If your disciplinary code stipulates that for a non-serious first offence you only need to give a verbal warning, but with the second offence of the same nature you must give a written warning, with the third offence of the same kind warranting a final written warning, and the fourth offence of the same warranting dismissal, then you cannot dismiss an employee for the particular offence if you have not given the correct number of warnings.
It is thus easy to fall into a trap right at the outset when drafting your disciplinary code. Avoid such with the help from a labour attorney. You can, for instance, dismiss an employee for a first offence without any written warnings if the offence is serious and, for instance, endangers the lives of fellow employees. That said, you still need to consider the employee’s personal circumstances and whether it is possible to follow an alternative route in disciplinary action, rather than dismissing the employee.
What the Warning Must Contain
To understand why the warning must contain specific aspects, you must understand the purpose of a warning. The warning is issued as a corrective action. It serves to warn the employee that more severe disciplinary action will follow, should the employee repeat the action.
The warning should thus include details regarding both parties involved. This means that it must include the employee’s name, surname, and job title. It must also contain your information, as the employer.
In addition, the warning should stipulate the nature of the offence, the date and time of the offence, the terms of the warning, the period for which it is valid, and a statement regarding what action is needed from the employee to correct the situation. It must also state what the consequences are for failure to meet the requirements of the warning or for repeating the offence.
If you issue a verbal warning, you must ensure that the employee understands why he/she is receiving a warning, what he/she must do to rectify the situation, and what the consequences are, should he/she repeat the particular or similar offence. You should inform the employee about the timeframe in which he/she must comply or rectify the situation, and for what period the warning is valid.
Only if the employee repeats the offence should you find it necessary to note the verbal warning on file. Only when the employee ignores the verbal warning or fails to rectify the situation should you initiate a written warning, followed by the correct number of warnings according to your disciplinary code, before disciplinary action is taken.
Only issue a written warning after you have followed the correct and fair procedure. This means the accused employee should get the opportunity to answer on the charges.
Get help from a labour attorney in drafting your disciplinary code and dismissing an employee according to fair procedures.
Contact us on (011) 234 2125 for labour law guidance regarding employment contracts, disciplinary action, and related issues.
NB – This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. The information is relevant to the date of publishing.
