In Schedule 8 of the Labour Relations Act, progressive discipline is a means for employees to know and understand the required standards. Progressive discipline plays an important role in the workplace and assists employees in correcting their behaviour and remedying their conduct. This means that employers should gradually attempt to correct the behaviour of their employees by issuing warnings before taking drastic measures such as dismissal.
In the matter of Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA & others, it was stated that efforts should be made to correct employees’ behaviour through a system of disciplinary measures. Such measures include counselling, training and warnings, and the employee’s disciplinary record should be taken into account when considering a sanction.
Employers’ disciplinary procedures and codes generally reflect the validity periods of disciplinary warnings, also referred to as sanctions. Warnings fluctuate from company to company. However, in most companies, verbal warnings are valid for three months, written warnings for six months and final written warnings for twelve months. The primary objective of a validity period is to keep employees focused on their tasks, display caution when executing their duties, and prevent the same or similar misconduct from repeating itself within the specified period of time.
But can expired warnings be taken into account when determining a sanction? The answer is no! Warnings are no longer valid after the expiry date and, therefore, cannot be referred to as an aggravating factor at a later date. However, with that being said, there are certain circumstances where expired warnings may be taken into consideration when determining the criteria of a sanction, but take note that employers need to be cautious in their approach when dealing with such cases.
There is case law to support the fact that expired warnings can be taken into consideration in certain circumstances:
In the case of Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others [2001] 9 BLLR 1011 (LAC), it was held that there is no fixed rule against taking lapsed warnings into account when deciding a sanction for later misconduct as long as an employer dealt with such warnings consistently and evenly in the workplace.
In another case, NUM obo Selemela and Northam Platinum Limited case number JA25/11, the Labour Appeal Court held that lapsed warnings might, if appropriate, be considered in determining an appropriate sanction for further misconduct. It was further held as follows; 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 clear that the expiration of a warning does not mean that an employee’s previous misconduct must be ignored when determining an appropriate sanction and may be considered as part of aggravating circumstances when an employee is found guilty of a repeated offence. Employers should, however, retain all expired warnings but must exercise caution when granting sanctions based on previous misconduct and/or expired warnings. Every case should be dealt with according to the merits of that specific case.
Want to know more about what needs to be taken into account when determining sanctions? Contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Mohamed Husain Essop started his career at SEESA in April 2022. He is a Legal Advisor. He has a Bachelor of Commerce in Law degree (Bcom Law) from the University of South Africa and is currently in his third year of study towards a Bachelor of Laws degree (LLB) through the University of South Africa.
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Resources:
- https://www.capelabour.co.za/can-expired-warnings-be-considered-disciplinary-hearing ( accessed – 13 September 2022);
- https://www.labourguide.co.za/recent-articles/2864-can-expired-warnings-be-considered- Jan Du Toit ( accessed 13 September 2022);
- Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA & others at 2277);
- Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others [2001] 9 BLLR 1011 (LAC);
- NUM obo Selemela and Northam Platinum Limited case number JA25/11.