Should expired warnings be considered?

A disciplinary warning is generally considered to be a verbal conversation and/or written document used by an employer to inform an employee that his/her conduct is not acceptable to the business and any further similar conduct will result in stronger measures, up to and including dismissal, being taken.

Depending on the company disciplinary code, these warnings differ in severity depending on the seriousness of the transgression. In the case of a moderate offence, employees can be given a verbal reprimand. It is still advised that a written record is kept of this warning and is often valid for a period of (three) 3 months. The next step in progressive discipline would be to issue an employee with a formal written warning. All written warnings should be placed on the employee’s file and are typically valid for a period of (six) 6 months.

A final written warning is the last warning an employee can expect before dismissal. The purpose is to give the employee a final chance to correct his/her behaviour. A final written warning is usually valid for (twelve) 12 months. Disciplinary steps are used to create a harmonious workplace. This is done by protecting both the employee and the employer in the process of dealing with unacceptable behaviour.

The Code of Good Practice recommends that employers keep a record for each employee specifying the nature of any disciplinary actions taken by the employer against the employee. It would thus be unreasonable to expect the employer to remove and destroy any warning after the expiry thereof.

So the question remains, should expired warnings be considered in determining the appropriate sanction for further similar misconduct? There are conflicting views on whether an expired warning should be taken into consideration when misconduct takes place.

All things being equal, the essence of an expired warning means that the warnings are no longer valid after the expiry date, therefore cannot be referred to as an aggravating factor at a later date. The ideal behind the expiry of a warning, it to give the employee a clean, unblemished disciplinary record.

In the case of NUMSA and Others vs Atlantis Forge (Pty) Ltd (2005, 12 BLLR 1238) the Labour Court ordered the employer to reinstated the dismissed employees because the final warnings had expired. In this case the employer’s policy was for expired warnings not to be taken into account.

Then the question arises, why should expired warnings be kept on record, if they cannot be used during future disciplinary action? Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others [2001] 9 BLLR 1011 (LAC) made it quite clear that there was no absolute rule regarding the status of lapsed warnings as long as an employer dealt with such warnings consistently in the workplace.

Subsequently, the Labour Appeal Court has held that expired warnings may serve as proof of an employee’s propensity to commit certain types of misconduct. The Labour Appeal Court case of NUM obo Selemela v Northam Platinum (JA25.11) held that: “Indeed, the 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.”

In another Labour Appeal Court (LAC) case of National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2013), it was held that repeated misconduct are acting contrary to the terms of their employment contract. As a result,  an employer is entitled to take into account all previous warnings of a similar nature.  

It is therefore concluded that expired warnings should not be used as progressive steps of discipline, but that they may be used as aggravating factors once the employee has been found guilty of an offence and it must be decided on an appropriate sanction. Thus, expired warnings might be used to justify the dismissal of an employee.

It is thus important to note that the employers policy and warnings be worded correctly, should they wish to take these warnings into consideration at a late stage. If the warnings included a sentence stating, for example that the terms and conditions of the warning remain in place after the expiration of the warning, this warning could still be used as an aggravating factor during a disciplinary hearing, provided it is consistently applied to all employees.

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