Expired Verbal and Written Warnings. Am I out of the woods?

Can you remember that sigh of relieve when your six or twelve month’s written warning lapsed? That feeling of a mountain lifting from your shoulders! The idea or foundation of verbal and written warnings are twofold. Firstly as a measure of progressive discipline and secondly to show that the conduct is unacceptable and needs to change.

Progressive discipline is an integral part of correcting unacceptable behaviour, focussing on coaching you to conform to acceptable conduct in the workplace. But, a word of caution, these warnings should not be taken for granted.

Expired Warnings

The period of validity in terms of all types of warnings, verbal and written, is normally stipulated on the warning. These time periods should not be taken for granted, even though mostly predetermined in a workplace policy, it will give you a sense of the seriousness of the misconduct. The purpose of warnings in the workplace is to alert you to pay attention and take caution in the performance of your duties and to, as a result, prevent the same or similar conduct within the specified time period.

Expired warnings do not vanish by default and may always remain in your employment file.  

The Court’s View on Expired Warnings

• Not Extinguished

The Labour Court, in Shoprite Checkers Pty Ltd v Ramdaw & others [2000] 7 BLLR 835 (LC), had the following to say: ‘…the view that Ms Ziqubu had a clean disciplinary record solely because the final warnings previously given to her had lapsed after four months…is clearly incorrect. The fact that a person no longer has a final warning hanging over their head no more extinguishes prior misconduct than the lapsing of a suspended prison sentence extinguishes the conviction from a person’s criminal record…’ (Own Emphasis)

• Aggravating factor

The Arbitrator at the Metal and Engineering Industries Bargaining Council, in UMSA obo Williams / Robertson & Caine (Pty) Ltd [2005] 10 BALR 1062 (MEIBC), held that Williams’ dismissal for ‘being under the influence of alcohol’ was fair. The interesting, or rather concerning, part is that William did not have a clean disciplinary record. Besides for a number of warnings for poor timekeeping, Williams had a written warning for being under the influence some two years earlier. Even though that warning expired some time back, it was considered as an aggravating factor.

• Cumulative effect

The Labour Court cautioned in the Transnet Freight Rail v Transnet Bargaining Council and others (C644/2009) [2011] ZALCJHB 15 (4 March 2011) judgment that ‘previous expired warnings could be considered to show a consistently deplorable employment record. An employer is always entitled to look at the cumulative effect of an employee’s misconduct.’

Progressive Discipline

The Code of Good Practice: Dismissal in item 3(2) confirms that ‘The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.’

A word of caution;  if you are not guilty of the alleged misconduct, you should not just accept a warning. Receiving a warning when you are not guilty of the misconduct may be an unfair labour practice. You do have recourse in terms of the Labour Relations Act 66 of 1995 (LRA), specifically section 186(2)(b) that ‘Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving…or any other unfair disciplinary action short of dismissal in respect of an employee…’ Remember that a warning is part and parcel of progressive discipline.

The gist of the matter herein is that; should your employer issue written warnings and be clear, reasonable and concise that the said warnings (including lapsed warnings) under specific or certain circumstances may be considered to determine an appropriate sanction for a future transgression, you might find yourself still in the woods due to superfluous and/or previous unchallenged cumulative written warnings in your file.

A clear, reasonable and concise warning received from your employer is no laughing matter. These warning(s), including expired warnings, may under specific or certain circumstances be taken into consideration in determining an appropriate sanction should you face a disciplinary hearing. You might find yourself still in the woods due to superfluous and unchallenged cumulative written warnings in your employment file.

Conclusion 

Don’t be disheartened! Sound advice today is to familiarise yourselves with the internal employer policies; be alert; pay attention to the job at hand and don’t fall in the trap of inattentiveness or wilful disregard for the workplace rules.

Ultimately, the rational for applying progressive discipline is to caution and to change an employee’s conduct. Even though a warning affords you a second chance to redeem yourself, a deplorable employment record might just be the last nail in your coffin. Remain diligent and avoid accumulating written warnings.  That will keep you out of the woods! 

Remember, MISA is just a phone call away. 

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