How does one issue a final written warning and how many warnings can an employee be issued with?

Final written warnings are, as the name suggests, the final warning that an employee should be given before having his or her employment terminated. It is the last (or only, if the misconduct committed is serious) opportunity that the employee has to correct his or her behaviour. For this reason, final written warnings should not be issued lightly. It is advisable that the employer is sure of the facts and the employee’s guilt before issuing a final written warning, as the courts have found that if the fairness of a dismissal is disputed based on the employee challenging the fairness of a final written warning issued prior to the dismissal. In Workplace Law, (11th Ed, Juta Cape Town) author John Grogan explains at page 158 that the importance of a proper inquiry before issuing a warning is illustrated in Changula v Bell Equipment (1992) 13 ILJ 101 (LAC), where the Labour Appeal Court found that a final written warning that had been issued to an employee before his dismissal was unjustified and therefore the subsequent dismissal was unfair. Make sure that you have solid grounds to issue a final written warning, although a formal disciplinary enquiry is not required from a procedural point of view. In other words, issuing a final written warning without having a formal disciplinary enquiry is not procedurally unfair.

Final written warnings are generally quite lengthy in validity. Most companies will stipulate in their disciplinary policies that final written warnings will remain for anything from 9 to 12 months. Employees who have been issued with a final written warning may generally only be dismissed if they commit the same or a very similar offence whilst a final written warning previously issued in valid. For example, an employee who is on a final written warning for unauthorised absenteeism does not report for duty for a day or more, then he or she will be dismissed. However, if that same employee is found to commit another, unrelated offence, such as not wearing the appropriate personal protective equipment in the workplace, it would be considered unfair to dismiss in those circumstances. This principle, however, often causes the question to be asked – how many final written warnings can an employee receive? In other words, is an employer expected to retain an employee commits serious offences of a time-keeping nature, then commits equally serious offences of a work-output related nature, etc.? The answer lies in the company’s disciplinary policy and code. It is recommended that you make provision for a “comprehensive final written warning” and include a provision in your disciplinary policy that stipulates that any employee who is issued with more than two valid final written warnings may be dismissed. To better understand this concept, please be reminded of the purpose of progressive discipline – to try and correct the employee’s behaviour. By issuing a “comprehensive final written warning”, you are not only making it abundantly clear to the employee that he has no more chances left (at least whilst the comprehensive final written warning is still valid), but also that you are prepared to give him or her one last chance, despite the fact that he or she has committed serious misconduct in more than one category in terms of the company disciplinary policy. This demonstrates that the company is prepared to reserve dismissal for what it is intended – the most severe breach of trust and an option of last resort.

The steps that we recommend when issuing a final written warning are:

  1. Instruct the employee to attend a meeting. Although (as explained above) it is not required to hold a formal disciplinary enquiry, the issuing of a final written warning is very serious and so the employer must be in a position to show the employee the evidence before issuing the final warning. This instruction to attend a meeting can be issued verbally or in writing. Inform the employee that you would like to see him or her in your office or in the boardroom at a certain time. Make sure that you have given adequate time for a thorough ventilating of the issues.
  2. Inform the employee of his or her right to nominate a representative to accompany him or her to the meeting. Explain to the employee that you are going to be having a discussion about his or her behaviour and that he or she has the right to call a representative of his or her choosing to attend the discussion. This representative may be any fellow employee and excludes any outside representatives such as consultants, lawyers or trade union officials.
  3. Explain the infringement and the reason behind issuing the final written warning. Remember the purpose of the disciplinary action being taken is to correct the employee’s behaviour. In order to do that, you need to explain what the standard or rule is and that the employee has broken the rule. You are not issuing the warning to punish the employee — if you take this approach, you will get a more negative response from the subordinate. However, if you are issuing a final written warning for a repeated offence for which the employee has already been disciplined, it should be pointed out to the employee that the employer is concerned that previous corrective action (the issuing of a written warning) has not worked. Consider presenting the evidence to the employee and his or her witness to demonstrate the seriousness with which the employer is approaching the situation.
  4. Allow an opportunity for the employee to explain him or herself. The employee should be given a fair and reasonable opportunity to explain his or her actions. Since the issuing of a formal final written warning is challengeable in the CCMA, the employee ought to be given a reasonable opportunity to state their case. If the matter appears to be complex, an employer may consider conducting a formal disciplinary enquiry in order to ascertain the truth and deal with evidence and witness testimony.
  5. Issue the warning. A final written warning form should then be filled out and handed to the employee. The employee and the representative should be asked to sign in receipt of the warning. This means that the employee is required to sign the warning to signify that he or she was received it, even if they do not necessarily agree with the warning being issued. A signed warning does not preclude an employee from appealing against it, nor does it invalidate the warning. However, if the employee refuses to sign the warning despite it having been explained to him or her that he or she is simply signing in receipt, then don’t escalate the issue — simply note on the warning that the employee has refused to sign and counter sign it (it’s good in this situation to have a witness sign as well). Make sure, however, of the reasons for the employee’s refusal to sign the warning. If it is because he or she is pleading his or her innocence, it may be advisable to convene a disciplinary enquiry.
  6. Inform the employee of his or her right of appeal. The employee has the right to appeal against any disciplinary action taken, including a final written warning. Inform the employee of this right and the timeframes associated with this, as stipulated in the company’s appeal procedure.
  7. Make a copy for the employee.
  8. File the original warning.