Q&A

WiseUp gives you the answers to your questions. 

Question: What qualifies as misconduct in the workplace?

Answer: > Misconduct generally refers to instances where an employee's behaviour in the workplace is unacceptable or improper. Misconduct is often described as any behaviour by an employee that goes against company rules.

>  There are many scenarios that will qualify as misconduct in the workplace, for example, late coming, being absent without authorisation, misuse of company resources, theft, fraud, harassment and so on. 

>  However, if an employee is found guilty of misconduct, it does not mean that they will be dismissed. South African laws allows for progressive discipline that requires an employer to first give warnings before considering dismissal depending on the seriousness of the misconduct. However, if the employee's behaviour was of such a serious nature that the trust relationship is broken down, it can lead to immediate dismissal. 

>  Labour law also requires employers to follow a fair procedure when taking disciplinary action.

Question: Can misconduct include behaviour outside of the workplace?

Answer:  > Yes, misconduct does not always have to occur in the workplace as an employee is still regulated by company rules during events like year-end functions or team building. It is even possible for disciplinary steps to be taken if an employee posts negative comments about a colleague or their manager on social media.

>  In some instances, disciplinary steps might even be taken as a result of bringing the company's name into disrepute, for example, if an employee wears a uniform with the company logo and is in a fight with someone in a public space. 

Question: What types of warnings are there and how long are they valid for?

Answer: > Verbal warnings: Although verbal warnings lead to a formal warning on an employee's record for three months, it can be seen as a “friendly” reminder that if an employee continues breaking certain rules, more serious action will follow. 

>  Written warnings: These are more formal than verbal warnings and a fair procedure where the employee presents their case should be followed before issuing a written warning. It is valid for six months.

>  Final written warnings: Are for serious offences of misconduct (as a first instance) or repeated offences where the employee has already received a written warning for a similar offence. This type of warning gives an employee a final chance to correct their behaviour and is valid for a period of 12 months. A disciplinary hearing must precede a final written warning, especially in serious instances where dismissal might still be a possible sanction.

>  If a formal disciplinary hearing was not held, the employee must still be given an opportunity to state their case before the written warning or final written warning is given. If the employer fails to give the employee an opportunity to state their case, it can be a form of unfair labour practice.

Question: Can an employee challenge a warning?

Answer: > Yes, an employee can challenge a warning by laying a grievance internally or follow the internal appeal procedure if there is one. If it cannot be resolved internally, then the employee can go to the CCMA.

>  Employees have 30 days to refer a matter of unfair dismissal to the CCMA or bargaining council, and 90 days to refer a matter of unfair labour practice.

Did you know…An employee must sign the written warning, however, refusal to sign the warning does not mean that the warning is invalid.