A final written warning means just that
An employee who was already on a final written warning for not taking the breathalyser test each time when entering the company premises, was again caught for using a different entrance to avoid being breathalysed.
After he was caught, he was tested twice, 20 minutes apart, and in both instances tested positive.
The employee’s denial that he was under the influence and that the test results were due to the fact that he had taken headache medication, was not persuasive. As a senior manager he knew the rule, was found guilty of having breached the rule, and was dismissed.
Aggrieved at the fact that the arbitrator confirmed that his dismissal was for a fair reason, the employee turned to the Labour Court in Motshwaiwa v Pioneer Foods (Pty) Ltd ta Sasko Qwaqwa and Others.
As he was of the view that his final written warning should not have played a part in his dismissal, alternatively, should have been ignored and that he should have been issued with a further final written warning instead of a dismissal notice, the court explored what the purpose and implication of a final written warning was.
The court held that: “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.”
The court quoted with approval from the decision in Transnet Freight Rail v Transnet Bargaining Council and Others, which held that “the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable.”
This means that there would be no purpose in imposing progressive discipline when an employee who commits the same or similar misconduct while under a final written warning. This was made clear when the court quoted with approval from the finding in Gcwensha v CCMA and Others : “… 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…”
The court also turned its attention to the question of whether a final written warning issued for unrelated misconduct had the same effect.
Quoting with approval from the Labour Appeal Court (LAC) decision in NUM and another v Amcoal Colliery t/a Arnot Colliery and another, it concluded that it made no difference. In this matter the LAC said: “… disciplinary code provides for a progression of penalties. The rationale behind it must have been that there would come a stage beyond which the accumulated penalties cannot be allowed to progress further. Their cumulative effect would then provide clear evidence of ill-discipline which would render a continued employer-employee relationship intolerable.”
Importance of this judgment: Once an employee has been given a final written warning, it serves as aggravation when the employee commits any further misconduct because it demonstrates a propensity on the part of the employee to behave in a certain manner. As progressive discipline would be futile, the only appropriate sanction is that of dismissal.
