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Schedule 8 of the Labour Relations Act requires that all employers should adopt disciplinary rules that establish the standard of conduct required of their employees. Additionally, it is further prescribed that employers should progressively attempt to correct the behaviour of its employees by issuing warnings before resorting to measures such as a dismissal. This article deals with the effect of expired warnings and whether such warnings can be considered in determining the appropriate sanction for further similar misconduct.

 

 Can expired warnings be considered?

By Jan du Toit

Updated 2022/03

 

Schedule 8 of the Labour Relations Act requires that all employers should adopt disciplinary rules that establish the standard of conduct required of their employees. In addition to this it is further prescribed that employers should progressively attempt to correct the behaviour of its employees by applying corrective measures before resorting to measures such as a dismissal.

 

Warnings should therefore be seen as corrective instead of punitive measures. This means that the employer must first attempt to correct the behaviour of an employee instead of punishing the employee. The way in which warnings are issued and for how long they will remain valid depends entirely on the size and nature of the organisation. Furthermore, according to Schedule 8, employers must keep record of disciplinary action taken against its employees. Such information must include the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

 

It is important to note that the above mentioned does not refer to valid warnings only and it is therefore abundantly clear that employers should not destroy expired warnings. This brings about the next question: may expired warnings be used to justify the dismissal of an employee?

 

In NUMSA obo Emmanuel Zwane and Maksal Tubes (Pty) Ltd, MEIBC arbitration under case number MEGA 37025, the applicant was dismissed for gross insubordination and “poor timekeeping”.

 

The applicant (Mr Zwane) was employed as a “discard assistant” in the respondent’s business for 22 years when he was dismissed. The applicant reported 25 minutes late for work. The production manager wanted to know why the applicant was late and sent another colleague to call Mr Zwane for him to explain why he was late. Mr Zwane refused and the colleague was sent back again to call Mr Zwane who still refused, saying that “he was busy”. 

 

Two days later Mr Zwane failed to report for duty and did not notify his employer as per company policy. The following day, Mr Zwane reported for duty as if nothing had happened and he did not furnish his employer with any reason as to why he had been absent without permission. He also showed no remorse or even apologised for his unauthorised absence from the workplace.

 

According to one of the witnesses called by the respondent, he had verbally counselled Mr Zwane multiple times and warned him of the consequences of his actions, obviously without success. It was further testified that the applicant was a habitual late-comer who was not “serious” about his job. The applicant was previously a crane driver but because of a tendency to just “wander off” he was transferred to a department where this would not be that easy.

 

According to the witness, the applicant had a serious absenteeism/insubordination problem. Inclusive of various final warnings, the applicant was also a poor performer.

 

It was contended that the applicant had received so many final written warnings over the years, that dismissal was indeed justified and appropriate. According to the respondent, Mr Zwane simply did not listen to anybody and his disciplinary record was submitted as evidence, consisting of the following corrective measures:

 

  1. Charged for gross insubordination, poor timekeeping and unauthorised absenteeism and dismissed.

 

  1. Unsuccessful appeal.

 

  1. Previous dismissal and settlement agreement reached at MEIBC which was changed to a final written warning.

 

  1. Abusing sick leave.

 

  1. Disciplinary hearing for poor timekeeping which resulted in a final written warning.

 

  1. Transfer of applicant to another section to get him to desist from poor time keeping.

 

  1. Disciplinary hearing for unauthorized absenteeism.

 

  1. Disciplinary hearing for being absent from work without permission which culminated in a final written warning.

 

  1. Disciplinary hearing for insubordination which culminated in a final written warning.

 

Mr. Zwane submitted that he was only two minutes late after he clocked in. The arbitrating commissioner questioned this since the employer already sent a replacement to his workstation when he eventually reported for duty. It would have made no sense to send a replacement if the employee was only two minutes late.

 

Mr. Zwane further contended that he was not allowed to leave his workstation unattended which was the reason why he could not go and see his manager. On the second occasion, he was unable to report for duty because his wife, from the rural areas, visited him and she was sick. He attempted to phone his employer on three occasions but could not get through.

 

He conceded that he had final written warnings, but most had expired a long time ago and insisted that he was not the author of his own downfall.

 

The arbitrating commissioner agreed that Mr. Zwane certainly made himself guilty of insubordination by disregarding the reasonable instructions of his employer to go to his superior’s office after reporting 20 minutes late.

 

The commissioner did not agree that this incident of insubordination was in itself “gross” but reasoned that it became “gross” as a result of the applicant’s previous disciplinary record which certainly was nothing to be proud of.

 

According to the commissioner, if an employer is prevented from making use of expired warnings to show to an arbitrator that an employee’s dismissal had been justified, how else then would an employer be able to show that it complied with progressive discipline in terms of Item 3(2) of Schedule 8 to the LRA? Naturally, such warnings do not carry the same weight as a valid warning. The dismissal of Mr. Zwane was found to have been both procedurally and substantively fair.

 

These sentiments were enunciated by the Labour Court in the matter of Cliff Choene v Mitsui & Company Southern Africa (Pty) Ltd case number J185/06. Judge Lagrange said:

 

In the circumstances, there is no good reason to disregard the accumulated disciplinary history of the applicant. In the main, this history indicated a constant problem with his unexplained extended absences from the office after running errands or collecting passengers. The situation never seemed to improve …

 

In Builders Trade Depot v CCMA & Others [2012] 4 BLLR 343 (LC), Judge Steenkamp J had this to say about the issue of final written warnings:

 

The first point that needs to be made in this regard is that the applicant never appealed against any of the written warnings he was issued with. His explanation for accepting all of them when they were issued to him was that he was told he would be dismissed if he did not do so. I am disinclined to accept this explanation for the following reasons. If it was the employer's intention to make the applicant accept warnings under duress, then it is difficult to understand what appears to have been its generally accommodative approach in disciplining the applicant.

 

It is furthermore trite law that disciplinary steps which are not challenged timeously cannot be challenged belatedly when the final step of dismissal is taken. If the applicant had been intimidated into accepting the warnings, and if he believed that any appeal would be futile, there is no explanation why he did not approach the CCMA over such a long period of time to challenge any of them as he could have done. In the circumstances, there is no good reason to disregard the accumulated disciplinary history of the applicant. In the main, this history indicated a constant problem with his unexplained extended absences from the office after running errands. The situation never seemed to improve.

 

This reiterated the sentiments of the Labour Appeal Court in Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others [2001] 9 BLLR 1011 (LAC) that made it quite clear that there was no absolute rule regarding the status of lapsed warnings as long as an employer dealt with such warnings consistently in the workplace. Judge Zondo JP had commented as follows on the status of expired warnings in any particular workplace:

 

In our law there is no statutory provision that deals with what the duration of a disciplinary warning is nor is there a statutory provision that deals what the effect is in law of the lapsing of a disciplinary warning. An employer and an employee may deal with these matters in their contract of employment. This may also be dealt with in a collective agreement between an employer and a trade union. These matters may also be governed by an established practice in a particular workplace …

 

… It is for the employer, if he wishes to rely on an employee’s previous disciplinary record to prove which regime applies in the particular workplace. If he fails to show this, he cannot complain if a commissioner in the CCMA adopts the approach that, as the warnings of the employee have lapsed, the employee must, for all intents and purposes, be treated as having a clean record.

 

Judge Mr Mogoeng Mogoeng, then as a Labour Appeal Court Judge, in NUM & Another v Amcoal Colliery [2000] 8 BLLR 869 (LAC) had this to say on the subject of a final written warning:

 

On the other hand, the second appellant and Maseli had already been given a Final Warning. This means that they had each been warned that they were on the verge of dismissal and that any future transgression could leave the first respondent with little choice but to dismiss them. The imposition of any punishment which is lesser than dismissal would have been at odds with logic and the very purpose of punishment.

 

In another case, NUM obo Selemela and Northam Platinum Limited case number JA25/11, the Labour Appeal Court held that expired warnings may, if appropriate, be considered to determine an appropriate sanction for further misconduct.

 

Indeed, an 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.

 

It is therefore evident that although expired warnings may not be used as progressive steps ultimately leading to a dismissal, they may be used as aggravating factors once the employee has been found guilty of an offense and it must be decided on an appropriate sanction.

 

The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in determining the appropriate penalty for new matters of misconduct.

 

 

 

 

 

 

 

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