Discipline and Dismissal

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Last week I was in Cape Town presenting a Labour Guide training course. A number of delegates raised the question of lapsed warnings and previous acts of misconduct unrelated to the offence being presently addressed.


One delegate advised that they had an employee who was dismissed for misconduct, and the chairperson of the hearing took into account the employees very bad previous disciplinary record as an aggravating factor. Apparently the previous disciplinary record contained a number of warnings - some of them already lapsed or expired - for various other unrelated offences.


The employee referred the matter to his Union, who in turn maintained that the dismissal was substantively unfair because the Chairperson of the disciplinary hearing is not permitted to take into account prior lapsed warnings for unrelated offences when considering a suitable penalty for the next offence.


Apparently, the CCMA agreed with the applicant, the dismissal was found to be substantively unfair, and the employee was reinstated. It is unfortunate that the employer let the matter rest at that stage, because in terms of case law, this particular Commissioner was way out of line.


I quote below case law on this very question :  can the chairperson of a disciplinary hearing take into account previous warnings - whether lapsed or not - in deciding on a suitable penalty for the next unrelated offence of misconduct?


Witcher / Hullets Aluminium
[2003] 12 BALR 1377 (MEIBC)

 Disciplinary procedure


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

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.

NUMSA obo Williams / Robertson & Caine (Pty) Ltd in his
[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.

Shoprite Checkers Pty Ltd v Ramdaw & others [2000] 7 BLLR 835 (lc) and in woman in

See also the same matter [2001] 9 BLLR 1011 (LAC)


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.

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