Final means final
Employers may rely on final written warnings issued to employees to impose a sanction of dismissal for repeated misconduct for the same or similar offence. The whole purpose of a final warning is to draw a line in the sand that any further misconduct of the same or similar nature will be visited with the sanction of dismissal.
In the matter of Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41 (5 March 2019), the court had to consider whether the commissioner’s decision upholding a sanction of dismissal relying on a final written warning, in circumstances where the employee challenged the validity of the final written warning, was justified.
The court held that employees may not challenge a final written warning in a dismissal dispute in the absence of having challenged the final written warning. If an employee is unhappy with an employer issuing a final written warning, then the employee must challenge it by referring an unfair labour practice dispute to the CCMA. It is therefore impermissible to dispute the validity of a final written warning in an unfair dismissal dispute.
The only challenges that may be made in respect of a final written warning in an unfair dismissal dispute are whether the final written warning was indeed issued, whether it was for a same or similar offence or whether such final written warning is still valid.
Wilken's Ink


Can the unpleasant consequences of the exercise of managerial prerogative be regarded as harassment?
