In a very short period of time, MISA was confronted with the phenomenon of members receiving either a First Written Warning or a Final Written Warning with a Disciplinary Hearing and/or Dismissal within days of the warning.

This raises certain concerns and reaffirms the fact that you, as a MISA member definitely need a voice.

Progressive discipline
This concept suggests a process whereby an employee progresses in confining their behavior or performance to the standards set by the employer. This principle is entrenched in Schedule 8: Code of Good Practice – Dismissal (the Code) found in the Labour Relations Act 66, of 1995 (LRA).

Item 3 of the Code reads as follows: “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.”

Recent phenomenon

Our member, LM, received a Final Written Warning on 7 February 2018 for Negligence regarding an incident which took place during January 2018. LM unsuccessfully appealed the sanction of a Final Written Warning and the sanction was upheld on 5 March 2018.

LM received a notice on 19 March 2018 to attend a Disciplinary Hearing on 28 May 2018 for alleged negligence which occurred on 6 February 2018. Important to take note that the alleged negligence took place prior to receiving the Final Written Warning.

MISA successfully argued that the principle of progressive discipline would be defeated should the Disciplinary Hearing continue.

Another member, VP, received a First Written Warning on 17 January 2018 for "Gross Negligence": “Failing to phone a customer”. VP was off on leave from 18 to 19 January 2018 and enjoyed an off weekend from 20 to 21 January 2018.

On Monday, 22 January 2018, VP received a notice to attend a Disciplinary Hearing for “Gross Negligence": "Failure to phone a client between 15 to 17 January 2018". The Disciplinary Hearing took place and VP was subsequently dismissed. Important to take note that the alleged negligence took place prior to receiving a First Written Warning.

MISA successfully negotiated end-of contract as opposed to dismissal with compensation and a neutral reference during Conciliation.

Authority on the principle of Progressive Discipline

The courts have endorsed the concept of progressive discipline.

The Labour Court in Transnet Freight Rail v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCJHB 15 (4 March 2011) held that “Generally, a final written warning valid for 12 months serves as a clear and strong communication to the employee that their conduct in this regard is extremely serious and will not be tolerated by the employer.” (Paragraph 40) (Own Emphasis)

The Labour Appeal Court in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) stated that one can accept “that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal”.

In both scenarios mentioned above it was clear that there was no opportunity for our members to progress to acceptable conduct as they were both subjected to further disciplinary action for incidents which took place prior to the receipt of a warning.

Progressive Discipline was made a mockery.

Remember that when you are faced with succession warnings without the opportunity to correct your conduct, you should phone MISA. Let us be your voice!

MISA is always just a phone call away.

Article by Tiekie Mocke, Manager: MISA Legal Department.

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