Industrial Relations Update – Disciplinary Action

Employers are often stumped when they are confronted with employees who commit disciplinary transgressions just after the employees previous warnings have expired.  The employee then escapes dismissal as he/she always avoids being sanctioned whilst on a final written warning.  This is especially so in companies where disciplinary codes set out a hierarchy of warnings for specific offences.

The above scenario is due to employers believing that in matters where dismissal would follow on a progressively (e.g. late-coming, negligence etc), that they can only dismiss if the employee is on a final written warning.  This was the defense of the employee in the matter of Gcwensha v CCMA [2006] 3 BLLR 234 (LAC).

In this matter, the employee was dismissed for gross negligence after a number of warnings for incompetence, negligence or inefficiency.  After losing in the CCMA and Labour Court, the Gcwensha took the matter to the Labour Appeal Court on the basis that the employer had taken into consideration a lapsed final written warning against him.  The LAC held in favour of the employer and held that an employer may dismiss employees in appropriate circumstances even if there is no final written warning in place.  The fact of the matter was that he was on a “warning” that placed him on terms.  The employer was entitled to take into consideration his “deplorable” record when deciding an appropriate sanction.  The employer’s disciplinary code was a guideline; the employee knew what was expected of him; and he was aware that he was on a warning.  As such the employer was entitled to dismiss even though he was not on a final written warning as required in the code.

This case is important as it highlights a number of important points:

• When reviewing your disciplinary code, ensure that the preamble/introduction to the code clearly states that it is a guideline and that the circumstances of each case must be taken into consideration when implementing discipline.

• Do not allow you disciplinary code to be too strictly interpreted – it must be a guideline to ensure that fairness is maintained in the workplace.

• You must ensure that when you discipline an employee who frequently transgresses, that you advise the employee that his entire disciplinary record may be considered when determining the appropriate sanction.  This will ensure that employees do not pick and choose their transgressions to ensure that they are not related or similar in nature.

• In the event of you coming across an employee who has a number of different warnings for various transgressions, you should convene a meeting with the employee and advise that his overall behaviour as an employee is unacceptable.  This will assist in ensuring that further transgressions may result in dismissal, even if the employee is not on a specific final written warning.

Regards

Andrew Breetzke