Question: Can a letter ever be a verbal warning in a case of insubordination? Can I be taken to task for not answering my personal phone? 

Mpho
Botswana-Gaborone

Answer: Dear Mpho: Thank you for writing in from Gaborone, Botswana’s capital city. For any blog readers who are not familiar with Botswana, it is directly north of South Africa, between Namibia on its west, Zimbabwe on its east, and Zambia on its north. I very much enjoy getting questions from readers in (what is for me) distant lands.   

1. First, it is always wise to be careful with words: it is a fact that “verbal” is defined as “using words,” and thus includes both “spoken” and “written.” Look it up in a dictionary: almost every dictionary defines “verbal” as “of or pertaining to words.” “Spoken” is almost always a second or third definition of the word “verbal.” However, the first definition in any dictionary is usually the preferred one, and for “verbal,” that includes both spoken and written. So, at least in a technical sense, a “written letter” would probably almost always satisfy the requirement of a “verbal” warning.

2. That said, I do acknowledge that most employers use “verbal” as in the phrase “verbal warning” to mean “spoken,” as opposed to “written.” In my 30 years of dealing with employers on behalf of employees, I have noticed many, many times that the word “verbal” is intended to mean “spoken,” and not to include “written.” So, as a matter of common usage, “written” and “verbal” are usually considered different.

3. However, since a written letter is inherently more trustworthy than a spoken conversation, a written letter would almost always be considered a fair and acceptable substitute for a spoken conversation. With a written letter, it is almost always easier to confirm (i) what was expressed, (ii) what was not expressed, (iii) when it was delivered, and (iv) its “tone.” For these reasons, and others, most employers prefer written warnings over “verbal” or “spoken” ones.  It is for these reasons that in almost all cases a “written” warning would be considered acceptable in place of a “verbal” or “spoken” one. (And conversely, I think a “verbal” or “spoken” warning – because it is inherently less trustworthy – would almost always not be considered an acceptable substitute for a written one.) That is my experience both in Court and in negotiating with employers, too: “written” is accepted even if “spoken” is required.

Bottom line is this: Do not expect to win an argument that, because you received a notice in writing, and not in spoken words, notice given to you was not effective or valid. I just don’t think that would work.

4. In fairness, you can be taken to task for not answering your personal telephone only if you agreed to answer it. Let us say, for example, that you are a Nurse in a hospital emergency department, and you are “on call” to come to work in the emergency department in case of a large disaster. In this example, if a plane crashed, and you did not answer the telephone you were supposed to have with you at all times, you would be properly taken to task. In other situations, where you had no obligation and no notice to answer your personal telephone, in fairness you could not be taken to task for not answering.

But then, again, in employment matters no one ever really guarantees that all that is done will be fair, no matter how unfair that may be.

Mpho, I hope this is helpful to you. Thank you for writing in from Botswana. Though we all have different laws, and different cultures, the ways of the workplace are pretty much the same the world over, and getting more and more similar every day. 

My Very Best to You,
Al Sklover

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