Are Written Warnings Legally Required Before Dismissal

Are Written Warnings Legally Required Before Dismissal

Many people assume that final written warnings work like American baseball: three strikes, and you are out.

It is a common misconception in the workplace that an employer must always issue a written warning before dismissing an employee.

While written warnings play an important role in progressive discipline, South African labour law does not apply a one-size-fits-all rule.

The real question is whether the dismissal is fair in the circumstances, taking into account the seriousness of the misconduct, the employee’s disciplinary history, the employer’s disciplinary code, and whether the employee was given a fair opportunity to respond.

Why Is A Final Written Warning Often Seen As Required Before Dismissal?

The belief that a final written warning is required before dismissal largely comes from the principle of progressive discipline.

For many years, employers have been encouraged to correct workplace misconduct through counselling, verbal warnings, written warnings and, where appropriate, final written warnings before resorting to dismissal.

This approach promotes fairness and allows employees to correct their conduct, particularly when the misconduct is less serious or can be remedied.

However, progressive discipline should not be confused with an absolute legal requirement that every employee must first receive a final written warning before dismissal.

The Code of Good Practice on Dismissal recognises that each case must be assessed on its own facts, and that serious misconduct may justify dismissal even without prior warnings.

In practice, the question is not simply whether a final written warning was issued, but whether dismissal was an appropriate and fair sanction in the circumstances.

Disciplinary Hearings

A written warning does not have to precede a disciplinary hearing.

The purpose of a disciplinary hearing is to give the employee a fair opportunity to understand the allegations, prepare a response, and present their version before the employer decides on an appropriate outcome.

In other words, the hearing is part of the process used to determine whether misconduct occurred and, if so, what sanction is fair.

For less serious misconduct, an employer may choose to issue a warning after considering the employee’s explanation.

For more serious misconduct, the employer may proceed directly to a disciplinary hearing without first issuing a warning.

What matters is that the process is fair, the employee is given a proper chance to be heard, and the sanction ultimately imposed is appropriate in the circumstances.

In Kock v CCMA and Others [2019] ZALCJHB 41; (2019) 40 ILJ 1625 (LC), the court dealt with the role of a current written warning in deciding whether the later dismissal was fair.

This matter explains that a final written warning places the employee on “final terms” and may properly be considered when assessing whether dismissal is justified after further misconduct.

Conclusion

In short, there is no automatic rule that an employee must receive a written or final written warning before dismissal.

Warnings are an important part of progressive discipline, particularly for less serious or repeated misconduct, but they are not a legal checklist that must be completed in every case.

The central issue is always fairness.

Employers should consider the nature and seriousness of the misconduct, the employee’s explanation, the workplace rules, and whether dismissal is an appropriate sanction in the circumstances.

Employees, in turn, should understand that serious misconduct may result in a disciplinary hearing and even dismissal without any prior warning, provided the process and outcome are fair.

Contact

Contact an expert at SchoemanLaw Inc in Cape Town or Paarl for assistance with your legal needs.

https://schoemanlaw.co.za/services/labour-and-employment/

Janet Mc Intosh

SchoemanLaw Inc

Attorney: Civil and Commercial Litigation