Final written warnings constitute a crucial element within the disciplinary framework of any Organisation. They afford employers the opportunity to communicate to employees that their conduct is deemed unacceptable, emphasising the need for a change in behaviour to avert dismissal.

The occurrence of persistent or recurrent misconduct may lead to the issuance of a final written warning. In cases of severe first-time offences, an employer may also choose to issue a final written warning. Normally, this warning remains in effect for a specified period, like 12 months etc.., and includes a statement outlining that further misconduct could result in dismissal.

Item (2) of schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act (“The LRA”) 66 of 1995 provides that the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings

According to Professor John Grogan in the book titled “Dismissal” Third Edition Juta 2017 from page 246 onwards, an employee’s disciplinary record may be taken into account when considering whether the employee should be dismissed for a particular offence. This follows from the requirement that dismissal should be ‘progressive’. An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning.

In Kock v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 1625 (LC) at para 47, the Labour Court held as follows;

“The purpose of the final written warning is in essence to place the employee on final terms. As a matter of general principle, a final written warning is exactly what it says, being that a repeat of the transgression in a specified period will result in dismissal. It is a last chance. If the employee is unhappy with being given a last chance in the first place, then the employee must challenge it, so it can be determined if this is a legitimate last chance. If the employee does not challenge it, then the employer should be entitled to accept that the employee is well aware that it is his or her last chance and would adjust his or her behaviour accordingly. It is then surely a matter of common sense that if the employee transgresses again, and is dismissed because of having spurned his or her last chance, it cannot be permissible to then attack the validity of the last chance. In effect, such a challenge undermines the very purpose of the final written warning, and what it is intended to do”.

In the case of National Union of Mineworkers & Another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 5 LLD 226 (LAC), the Labour Appeal Court considered the significance, application, and purpose of final written warnings, particularly in circumstances involving a collective misconduct. The employees involved in the misconduct had varying disciplinary records, with some already holding final written warnings and others facing different levels of sanctions.

Those who were already on final written warnings were dismissed, while the remaining employees received lesser sanctions, subsequently reduced by one level according to the Company’s progressive disciplinary structure. The court found that this differentiation in sanctions was fair. Despite arguments suggesting a reduction in the dismissal sanction, the court emphasised that the employees with existing disciplinary records were not restricted to a specific punishment, and their varied disciplinary records allowed for a more lenient penalty. The employees on final written warnings, however, left the employer with limited options, and reducing their dismissal to a final written warning would have resulted in no progression of discipline.

The Labour Appeal Court asserted that not imposing the dismissal sanction would mean insufficient consequences for the offence. Furthermore, considering the gravity of the offence, the court deemed it inappropriate to extend any final warning, emphasising that the employees’ actions warranted a more severe penalty than a final written warning would entail.

In conclusion, it is recommended that employers should appoint well-trained and independent individuals as chairpersons to preside over the disciplinary hearings. These chairpersons should have the essential skills and experience to objectively evaluate the facts of each case, demonstrating the ability to exercise independent and impartial decision making.

Written by Magate Phala, Labour Law Specialist and founding Director of Magate Phala & Associates