Disciplinary procedures and codes, among other things, clarify the validity periods of varying degrees of disciplinary warnings, sometimes referred to as sanctions.
Validity periods vary from company to company. Typically, verbal warnings are valid for three months, written warnings for six months and final written warnings for 12 months.
The principle of progressive warnings is also long established. It is based on 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All things being equal, warnings are no longer valid after the expiry date, therefore cannot be referred to as an aggravating factor at a later date.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 previous 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. However, caution must be exercised.
There is case law that supports the fact that expired warnings may be considered in certain circumstances. The Labour Appeal Court case of NUM obo Selemela v Northam Platinum (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 a written warning dating from March the previous year with a 12-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.”
More recently, in the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration case of Maduwandile Mbenenge v Mango5 (WECT18335-16), it was held that: “I note that Applicant also had two expired warnings on his record, both from 2014 and both concerning absenteeism, one being a breach of the very same rule that is before me now.”
In Shoprite Checkers v Ramdaw & Others (2000) 7 BLLR 835 (LC), it was held that there was no fixed rule against taking lapsed warnings into account when deciding penalty for later misconduct.
In yet a further CCMA arbitration case, that of Cheslyn Visser v Overberg Agri Bedrywe (WECT 2680-16), it was noted that: “The courts have ruled that where a pattern of misconduct repeats itself, expired warnings may be brought into consideration.”
In fact, in Numsa obo Williams v Robertson & Caine (2005) 10 BALR 1062 (MEIBC), it was further held that previous warnings for different offences may be taken into account when assessing penalty for later misconduct.
Expired warnings also serve as confirmation that the employee was aware of the company rule. For example, if an employee has been charged with using his or her cellphone during working hours, but denies having knowledge of a rule prohibiting this, a previous warning, expired or otherwise, would serve as proof of knowledge of this rule.
Ideally, employers should make provision in their disciplinary procedures for the retention of expired disciplinary warnings for potential use in circumstances in which an employee may repeat misconduct for which they have expired warnings. This suggests that warnings should be retained once they have expired.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 or visit www.tonyhealy.co.za.