Expired warnings: Are they relevant?
29 June 2009

There is always heated arguments on this issue.  Some maintain that when a warning has lapsed, it must be removed from the employee 's file. There is absolutely nothing in labour legislation (or case law for that matter) to support this.

Reference to the Code of Good Practice: Dismissal (section 5) states that "Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

The whole purpose of keeping records is to preserve the details of the proceedings for future reference, hence it is senseless to destroy a part of that record by removing warnings as soon as the warning lapses.

Equally, if you do not use records as a future source of reference, then the keeping of records is rendered superfluous and senseless.

In Shoprite Checkers Pty Ltd v Ramdaw & others [2000] 7 BLLR 835 (LC). See also the same matter [2001] 9 BLLR 1011 (LAC), it was ruled that "There is no fixed rule against taking lapsed warnings into account when deciding penalty for later misconduct. The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in assessing appropriate penalty for later misconduct."

Therefore, the retention of warnings, even after expiry, is important, it all forms part of the employee 's previous disciplinary record.

On considering the previous disciplinary record as an aggravating factor, in Witcher / Hullets Aluminium [2003] 12 BALR 1377 (MEIBC), the following was ruled :

On the Disciplinary procedure

Warnings: General warning for persistent breaches of company policies and rules is permissible and may justify dismissal for next unrelated offence.

On the Dismissal

Substantive fairness: Employee on "comprehensive warning" for string of unrelated offences dismissed for absenteeism. General warning not in itself unlawful or unfair. Dismissal justified

Editor 's Summary

The applicant was dismissed for being absent without leave on two separate occasions. He was at the time on a "consolidated final warning" for absenteeism and other unrelated offences.

The arbitrator held that, although the offences for which the applicant had been dismissed would not ordinarily in themselves have warranted dismissal, the applicant was on warning for a number of other offences. That warning provided that the applicant could be dismissed for any further breach of the disciplinary code. Although a "consolidated warning" was not expressly mentioned in the respondent 's disciplinary code, that code did permit dismissal of employees who continued to breach company rules, despite warnings and counselling. The arbitrator noted that the concept of a "comprehensive" final warning is not unknown. While warnings are generally regarded as relevant only if they relate to similar offences, there was nothing wrong with warning employees against continuous breaches of company rules and policies. The applicant understood the pervasive nature of the warning. His failure to report for duty on two successive Fridays was sufficient to trigger the consequences of that warning.

The commissioner noted further that arbitrators may interfere with employers' decisions to dismiss employees only if such decisions are unreasonable. It could not be said that the respondent 's decision was unreasonable.

Derek Jackson, www.labourguide.co.za