What a final written warning actually means

As an employer, you may sometimes be painted as “the bad guy” by your employees if a situation comes to pass that you need to serve a final written warning on one of your staff members.

The case of Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41; (2019) 40 ILJ 1625 (LC); [2019] 7 BLLR 703 (LC) (5 March 2019) illustrates a similar situation.

A quality insurance specialist was dismissed after persistently defying an instruction by her supervisor to work from 8am to 4.30pm.

The employee was on a final written warning for insubordination.

The commissioner took into account, among others, the final written warning and upheld the dismissal. On review, the employee argued that the commissioner had made an error by refusing to consider the validity of the final written warning.

However the labour court concluded that the final written warning had been issued.

In addition, it was current and there were no challenges to it after the warning had been issued.

The Labour Relations Act (LRA) draws a clear distinction between unfair labour practice and dismissal disputes.

The court found that a final written warning is a last chance for employees to correct their behaviour.

If the warning is not challenged, the employer is entitled to rely on it. Allowing employees to dispute final written warnings after their dismissal would undermine the purpose of these types of warnings.

Turning to the fairness of the sanction, the court noted that the employee had not challenged the finding that she had deliberately and persistently refused to work the hours she had been instructed to work.

By defying her employer’s authority, the employee had destroyed the employment relationship.

The instruction she had defied could not have been clearer and she was already on final warning for insubordination.

The employee had invited her dismissal, which the commissioner could not be faulted for finding to be fair. The application was dismissed.

In this weekly column, labour lawyer Jonathan Goldberg, CEO of Global Business Solutions, looks at various aspects of labour law.