Expired warnings can still justify dismissal

Expired warnings can still justify dismissal

Disciplinary procedures and codes, amongst other things, clarify the validity periods of varying degrees of disciplinary warnings (sometimes referred to as sanctions).

Validity periods vary from company to company; but typically verbal warnings are valid for three months, written warnings for six months, and final written warnings for twelve months.

The principle of progressive warnings is also long established, in the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired, valid warning, the subsequent sanction will be progressively more severe.

All things being equal, warnings are no longer valid after the expiry date, and therefore cannot be referred to as an aggravating factor at a later date.

Put differently, if I am found guilty of late coming today, and a prior final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.

That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction, in certain circumstances; caution must however be exercised.

There is case law which support the fact expired warnings may be taken into consideration in certain circumstances.

The Labour Appeal Court case of NUM obo Selemela v Northam Platinum Ltd [JA25.11] held that “ … even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so she committed an irregularity”.

The judgment more especially noted 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”.

This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others [DA7/04] which held that “It must also be recalled that there was in existence a written warning dating from March the previous year with a twelve month duration.  The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded.  The employer is always entitled to take into account the cumulative effect of these acts (of misconduct) … to hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings”.

This suggests that warnings should be retained once they have expired.

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