Should employers keep expired warnings or discard them?

Employers often have employees that have accumulated a bad disciplinary record over the years and that have an employee file riddled with various disciplinary warnings. Seemingly, the employee keeps committing the same type of offence over a period of time. The employer is left unsure whether they can dismiss the employee as the multiple warnings in the employee’s file have expired.

Schedule 8 of the Labour Relations Act states that employers should adopt disciplinary rules that establish the standard of conduct required of employees. Employers are also required to progressively attempt to correct the behaviour of its employees before resorting to a measure of dismissal.

According to Schedule 8, employers must keep record of all the disciplinary action taken against employees. This information must include the nature of any disciplinary offences, as well as list the actions taken by the employer and what the reasons were for such actions.

It is clear that Schedule 8 does not refer to valid warnings only, thus employers should not destroy expired warnings. This brings us back to the main question: may expired warnings be used to justify a dismissal of a repeat offender?

 In the Labour Court matter of Cliff Choene v Mitsui & Company Southern Africa (Pty) Ltd case number J185/06, Judge Lagrange said the following:

“In the circumstances, there is no good reason to disregard the accumulated disciplinary history of the applicant. In the main, this history indicated a constant problem with his unexplained extended absences from the office after running errands or collecting passengers. The situation never seemed to improve …”

In Builders Trade Depot v CCMA & Others [2012] 4 BLLR 343 (LC), Judge Steenkamp J had this to say about the issue of final written warnings:

“The first point that needs to be made in this regard is that the applicant never appealed against any of the written warnings he was issued with. His explanation for accepting all of them when they were issued to him was that he was told he would be dismissed if he did not do so. I am disinclined to accept this explanation for the following reasons. If it was the employer’s intention to make the applicant accept warnings under duress, then it is difficult to understand what appears to have been its generally accommodative approach in disciplining the applicant.

It is furthermore trite law that disciplinary steps which are not challenged timeously cannot be challenged belatedly when the final step of dismissal is taken. If the applicant had been intimidated into accepting the warnings, and if he believed that any appeal would be futile, there is no explanation why he did not approach the CCMA over such a long period of time to challenge any of them as he could have done. In the circumstances, there is no good reason to disregard the accumulated disciplinary history of the applicant. In the main, this history indicated a constant problem with his unexplained extended absences from the office after running errands. The situation never seemed to improve.”

Again in the Labour Appeal Court in Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others [2001] 9 BLLR 1011 (LAC) it was made clear that there was no absolute rule regarding the status of expired warnings as long as an employer dealt with such warnings consistently and evenly in the workplace. Judge Zondo JP had commented as follows on the status of expired warnings in any particular workplace:

“In our law there is no statutory provision that deals with what the duration of a disciplinary warning is nor is there a statutory provision that deals what the effect is in law of the lapsing of a disciplinary warning. An employer and an employee may deal with these matters in their contract of employment. This may also be dealt with in a collective agreement between an employer and a trade union. These matters may also be governed by an established practice in a particular workplace …

… It is for the employer, if he wishes to rely on an employee’s previous disciplinary record to prove which regime applies in the particular workplace. If he fails to show this, he cannot complain if a commissioner in the CCMA adopts the approach that, as the warnings of the employee have lapsed, the employee must, for all intents and purposes, be treated as having a clean record.”

In another case, NUM obo Selemela and Northam Platinum Limited case number JA25/11, the Labour Appeal Court held that lapsed warnings may, if appropriate, be considered to determine an appropriate sanction for further misconduct.

“Indeed, an employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings.”

From the various case law over the years, it becomes evident that although expired warnings may not be used as progressive steps ultimately leading to a dismissal, they may be considered as part of aggravating circumstances once the employee has been found guilty of a repeated offense and a decision must be taken on an appropriate sanction.

In summary, the fact that a previous warning has expired does not mean that previous misconduct should be ignored altogether in determining the appropriate sanction for new matters of misconduct.

Contact Invictus Group on 0861 737 263 for assistance with discipline in the workplace, as well as advice on all of your labour law matters.