Employers should have a disciplinary code and procedures in the workplace to ensure that each employee contributes effectively and efficiently to the best interest of the company or workplace.

Most minor offences committed in the workplace will start with a verbal or written warning for the first offences, and thereafter progressive disciplinary action will apply for repeat offenders. On the other hand, serious offences may warrant a hearing in the first instance. This will, however, depend on the facts of every case.

Whether issued by the employer or by the chairperson of a disciplinary hearing, warnings may be valid for a certain period ranging from three (3), six (6) or twelve (12) months before expiring.

What happens after a warning expires? Will it need to be removed from the employee’s record? Or can it still be considered for any future transgressions?

These questions were answered in several reported cases:

  1. In NUMSA obo Selema v Northam Platinum Ltd (2013) (LAC), the Court found that even if a Final Written Warning had lapsed, it should still be taken into account in considering the fairness of a dismissal. It was held that employees who repeatedly commit misconduct are acting in contravention of their obligations in terms of the employment contract. Thus an employer is entitled to consider all previous transgressions when considering whether or not to dismiss an employee for an offence and/or misconduct.
  2. In Gcwensha v CCMA and Others (2006) 3 BLLR 234 (LAC) stated that “an employer or Commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/or misconduct.”
  3. In the reported case of Witcher vs Hullets Aluminum [2003] 12 BALR 1377 (MEIBC), the following was also ruled – “General warning for persistent breaches of company policies and rules is permissible and may justify dismissal for following unrelated offences.”

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. This was confirmed in Shoprite Checkers Pty Ltd vs Ramdaw & Others [2000] 7 BLLR 835 (LC) and [2001] 9 BLLR 1011(LAC), when the Court ruled, “there is no fixed rule against taking lapsed warnings into account when deciding penalty for later misconduct.”

It is always advisable to keep all disciplinary records because this can be used as an aggravating factor when considering a possible dismissal.

Article by: Maretha van Rooyen
Dispute Resolution Official – Durban