How relevant are expired warnings on an employee’s record?
The issue regarding how relevant expired warnings are is always a heated one. Some employers believe that once a warning has lapsed it is to be removed from the employee’s file. There is no provision in either labour legislation or case law that supports this debate.
The Code of Good Practice on Dismissal states that employers should keep records for each employee, specifying:
- The nature of any disciplinary transgressions;
- The action taken by the employer; and
- The reasons for these actions.
The entire purpose of keeping records of disciplinary proceedings is to preserve the details of these proceedings for future reference. So, it would not make sense to destroy a part of that record as soon as the warning lapses.
The Labour Appeal Court has ruled that there is no fixed rule against taking lapsed warnings into account when you decide on the penalty for a later misconduct. Because a prior warning has lapsed does not mean that the misconduct, for which the warning was given, cannot be taken into account in assessing the appropriate penalty for later misconduct. It could be relevant to show the employee’s pattern of behaviour.
This means that the retention of warnings, even after these have expired, is important as these all comprise the employee’s previous disciplinary record.
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Author: Jonathan is the CEO of Global Business Solutions and is a nationally acclaimed consultant, lecturer, attorney and author on matters relating to Labour Law, Industrial Relations and Broad-Based Black Economic Empowerment. Jonathan is also an Arbitration and Mediation panelist, accredited Commissioner of the Commission for Conciliation, Mediation and Arbitration, member of Tokiso dispute settlement panel. |
