Cyril, a public servant, hosted our recent book group meeting. He is senior and bright but can be rather pedantic. I was the first there and found Cyril eating his dinner. He had been delayed at work. His manager had kept him back, then handed him a letter he said was a first written warning.

Cyril showed me the letter. Cyril said it couldn’t be a warning because it didn’t say anywhere that it was a formal warning. It just told him not to make his lunch in work time.

I asked Cyril to explain and learned he usually eats cheese sandwiches for lunch. He likes strong flavoured cheese. He brings it each day, keeps it in his desk until 11.45 am, then heads off to the kitchen to make his lunch. Yet his lunch hour is from midday to one o’clock. Someone had complained to Cyril’s manager about the smell, and that Cyril was making his lunch in work time.

Cyril was called to a disciplinary meeting about the allegation that he was performing personal tasks in work time. He had been told beforehand about the meeting’s purpose (potentially a disciplinary matter), what the nature of the allegations against him was and that he could bring a representative and/or support person with him.

Cyril agreed he was given a fair chance to explain himself. He told me he didn’t really have any defence – he knew he was wrong to use work time to make his lunch.

The upshot was Cyril’s employer decided to issue him with a first written warning for repeatedly undertaking personal tasks in work time. This was in line with the employer’s disciplinary policy. Cyril’s manager told him he would receive a first written warning and later that day handed him the letter.

When Cyril got home he read the letter. He discovered that it didn’t say it was a first written warning, nor did it say Cyril might be warned again or ultimately dismissed if he failed to heed the warning.

I read the letter. To be a warning, any written or verbal communication must make it clear that the employee is being warned and that dismissal could result from further transgressions. Cyril was entitled to a written warning under the disciplinary policy. Therefore if the letter didn’t specifically state he was being warned, it would not, in law, count as a first written warning. This remained the case, even though the manager told Cyril verbally he was being warned. It would have been a different matter if Cyril were entitled only to a verbal warning.

A warning for misconduct or poor performance must clearly state what the unacceptable conduct or poor performance was; specify what the employee needs to do to improve and how improvement will be measured (if applicable); specify by when the required improvement is to be achieved and set specific, objective, and measurable targets (applicable to poor performance only); explain what will happen if the employee commits a further act of misconduct or does not improve his or her performance; and make it clear the employee is being warned and that dismissal could result from further misconduct or a failure to improve performance.

Cyril asked me if this meant he could ignore the letter. I said that the letter didn’t count as a warning, but it would be a smart idea to stop making his lunch in work time. And I pointed out that his employer could still send him another letter!

By Penelope Ryder-Lewis, first published in The Dominion Post

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