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There is always heated argument on this issue. Of late, I have received a large number of e-mails on this matter – indicative that employers are having increased frequency of disciplinary hearings. 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.
The applicant's dismissal was upheld.
So it can be seen that the employee's previous disciplinary record is of vital importance – and the Chairperson of a Disciplinary Hearing should never fail to ask for the employee's previous record when he is considering an appropriate sanction. Of even more importance is the terms and conditions attached to the issue of a written warning – or a final written warning.
The fact that the warning has lapsed by the passing of time does not in any way negate the terms and conditions stated in the warning - if the warning has been properly worded. To state in a warning that "you are required to not commit any further act of misconduct during the validity period of this warning" is fatal – because it means that the terms and conditions lapse when the warning lapses – and are therefore no longer applicable.
Warnings should always state that "you are required to not commit any further act of misconduct whilst in the employ of this company, and you are informed that your continued employment with this company now rests entirely in your own hands." In that way, the terms and conditions of the warning do not lapse when the warning expires.
On using the expired warning as an aggravating factor
NUMSA obo Williams / Robertson & Caine (Pty) Ltd [2005] 10 BALR 1062 (MEIBC)
Disciplinary procedure – Warnings – Prior warnings for different offences may be taken into account when assessing penalty for later misconduct.
Dismissal – Substantive fairness – Alcohol consumption – Employee dismissed for being under influence of alcohol during working hours – Dismissal justified.
NOTE THAT A PREVIOUS ALCOHOL-RELATED OFFENSE WHICH OCCURRED 2 YEARS EARLIER WAS TAKEN INTO ACCOUNT HERE.
The applicant, a joiner, was dismissed after his supervisor smelled alcohol on his breath and a breathalyser test registered positive. The applicant denied that he was under the influence of alcohol at the time.
The arbitrator noted that the applicant had a poor disciplinary record. He had received several warnings for poor timekeeping, and one warning, albeit two years earlier, for being under the influence of alcohol. Since the applicant had denied that he had a drinking problem, there was no reason why the respondent should have treated his case as one of incapacity. The arbitrator held that the respondent had no option but to dismiss the applicant.
The application was dismissed.
So there you have it – don't throw away those expired warnings – proper record keeping will one day "save your bacon" as it were. Nothing could be worse than having a dismissed employee get his job back because you failed to keep proper records!
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