Warning records: The Labour Appeal Court has confirmed that there is no statutory provision dealing with the duration of disciplinary warnings nor when, if ever, they lapse.  Employers may deal with these matters in the contract of employment or in a policy or practice.  So employers may keep warnings for earlier transgressions for future use and have regard to them when deciding on appropriate action for any conduct that further damages or destroys the relationship of trust and confidence.  Employers would be wise to refer to the transgression in any warning but stress the effect it has had on the employment relationship.  The warning would then apply to any future misconduct of any nature that further damages or destroys the relationship of trust and confidence.

Dorrainn Bailiff Investments (Pty) Ltd v CCMA (JR86/2011, JA8/2015) [2016] ZALAC 20 (26 May 2016) per CJ Musi JA [Waglay JP and Murphy AJA concurring]

Excerpts without footnotes but with links

[14]      Article 2(1) of the Code of Good Practice: Dismissal reads as follows:

‘A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment.  Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty…’

[15]      In terms of article 3(5), the employer must in addition to the gravity of the misconduct consider factors such as the employee’s circumstances including length of service, previous disciplinary record and personal circumstances, the nature of the job and the circumstances of the infringement itself.  In terms of article 5, 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.

[16]      The appellant kept all the records of the previous transgressions and it made the third respondent aware that those records would be considered if he were to be found guilty of misconduct in future.  It is clear that the appellant kept and preserved the previous transgressions for future use.  It took lapsed warnings into account when deciding on a penalty for later misconduct.  In Shoprite Checkers v Ramdaw NO, Zondo JP, as he then was, said the following:

‘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 with 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.  ….  These matters may also be governed by an established practice in a particular workplace.  Depending on what the contract of employment between the parties, or, the applicable collective agreement, provides or what the established practice is in a particular workplace, the fact that an employee’s previous warning has lapsed or expired may well mean in a particular workplace that such employee must be treated as having a clean record when he is next found guilty of misconduct.’

[17]      More importantly, for purposes of this case, it has been said that:

‘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.’

[18]      In this matter, the last final written warning makes plain which regime applied in this workplace.  The third respondent was told in no uncertain terms that his entire disciplinary record would be used against him.

[19]      The Commissioner did not give proper weight to the previous transgressions.  He referred to the last final warning and said nothing about the first and second final warnings.  He did not have regard to the total picture when it comes to the disciplinary record of the third respondent.  It is clear that he limited his enquiry and reasons to “the valid final warning on record” in the process disregarding the other final warnings.  In light of the clear indication to the third respondent during the last final warning that all previous transgressions would in future be considered, the Commissioner committed an irregularity by not considering those.