In previous posts, we covered the principle of progressive discipline as a means to correct employees’ behaviour or poor performance and we also covered which warnings are appropriate for which offences. Now we will have a look at the practical side of actually issuing the warnings. This is an area that is not often covered and whilst there is very little required from a strict legal perspective in terms of how warnings need to be issued, there are certain crucial elements that need to be observed in order to uphold the principle of fairness when issuing warnings.
As previously discussed, we refer to formal and informal, verbal (or oral) warnings, the distinction being that an informal verbal warning is corrective action that a supervisor or manager would take “in the spur of the moment” in order to correct a subordinate’s behaviour or performance. When issuing an informal verbal warning, the supervisor does not require a record of the warning to be generated, but simply want to impress upon the subordinate that should he or she persist with the misconduct or poor performance, more serious disciplinary action will follow.
However, when the supervisor is of the view that minor misconduct has been committed and that formal disciplinary action is required, a formal verbal warning can be issued. Schedule 8 of the Labour Relations Act 66 of 1995 provides that no employee may be dismissed without there having been a formal disciplinary enquiry held. However, the legislative framework provides for warnings to be issued relatively quickly and easily, by comparison. The reason for this is to minimise the disruptions to production caused by the application of formal disciplinary measures short of dismissal. In other words, issuing a warning is not an exercise that should take up an inordinate amount of time and effort.
The steps that we recommend when issuing a verbal warning are:
- Instruct the employee to attend a meeting or discussion. This instruction can be issued verbally and informally. If the instruction is too formal, you may create the impression that the matter is more serious than it is and that may, in turn, create unnecessary anxiousness. Simply inform the employee that you would like to see him or her in your office or in the boardroom at a certain time.
- Inform the employee of his or her right to a representative. 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.
- Explain the infringement and the reason behind issuing 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. Further, you are requiring the employee to correct his or her behaviour. You’re not issuing the warning to punish the employee — if you take this approach, you will get a more negative response from the subordinate.
- Allow the opportunity for the employee to explain him or herself, within reason. Of course the employee should be given a fair and reasonable opportunity to explain his or her actions, but this must not be allowed to become overly drawn out. If the employee can provide an acceptable explanation for his or her actions, then the matter may simply be resolved there and then. For example, if you wish to issue a verbal warning to an employee for arriving at work late and the employee explains that the reason for his or her late coming is because they had a flat tyre on the way to work which delayed them, then they should be given the opportunity to provide that explanation and to back it up with the requisite proof (eg. they may have phoned in and informed another supervisor that they are going to be late, or they could have taken photographs of the flat tyre, etc.). However, if the employee is not able to provide a reasonable explanation for their actions, then the warning should then be issued.
- Issue the warning. A verbal warning form (yes, even though it’s called a verbal warning, a record of the warning is still kept) 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. 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).
- Inform employee of right of appeal. The employee has the right to appeal against any disciplinary action taken, including a verbal warning. Inform the employee of this right and the timeframes associated with this, as stipulated in the company’s appeal procedure.
- Make a copy for employee.
- File original warning.
All warnings have validity periods (set at management’s discretion) and verbal warnings generally would last from around 3 to 6 months.