Employers often seek advice on whether they may consider an employee’s written warnings that have already expired, when imposing a disciplinary sanction of dismissal.
The Labour Appeal Court (“LAC”) in the matter of National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2014) has confirmed that an employer may, when imposing a sanction of dismissal, take into account an employee’s previous warnings that have expired.
In this case, the employee was dismissed for refusing to obey an instruction, leaving his workplace without permission and threatening to kill a colleague. Subsequent to his dismissal, the employee referred an unfair dismissal dispute to the CCMA. Upon conclusion of the arbitration proceedings, the CCMA commissioner held that the employee’s dismissal was substantively unfair in that the employer, when it imposed the sanction of dismissal, relied on a final written warning (for a similar offence) that was no longer valid in that it had expired.
Aggrieved by the CCMA’s decision, the employer approached the Labour Court with an application to review the arbitration award. The Labour Court held that the decision made by the Commissioner was not one that a reasonable decision maker could make and set aside the arbitration award.
On appeal to the LAC, the court agreed that the commissioner came to an unreasonable conclusion. The LAC firmly held that employers are entitled to consider the cumulative effect of past transgressions (and expired warnings) where employees repeatedly commit acts of misconduct and/or fail to comply with their obligations under their contract of employment.
The aforementioned principle was previously confirmed in the case of Gcwensha v CCMA  (LAC). In this case, the court acknowledged that an employer cannot be expected to have to continue to employ an employee who regularly commits a series of transgressions at intervals after which final written warnings have expired.
In short, employers are entitled to consider the cumulative effect of acts of negligence, inefficiency and / or misconduct whether expired or not in determining whether dismissal is an appropriate sanction. Clients are well advised to keep on hand, when attending the CCMA, a note of the LAC decision in the event that it becomes necessary to defend an employee’s claim that his or her expired warnings ought not to have been considered when the sanction of dismissal was imposed.
PARTNER, HJW ATTORNEYS