Can an employer rely on a lapsed written warning during disciplinary proceedings?

In the recent Labour Appeal Court case of National Union of Mineworkers obo Selemela v Northam Platinum Ltd (JA 25/11) [2013] ZALAC 10 (31 May 2013), the employee was dismissed on three counts of misconduct. The employee had previously been issued with a written warning relating to similar misconduct.

The employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) where the commissioner found the dismissal to be substantively unfair. One of the issues that arose was whether and to what extent a court could rely on written warnings which have expired in determining the substantive fairness of a dismissal.

Dismissed in appropriate circumstances

The Labour Appeal Court quoted the case of Gcwensha v CCMA and Others 2006 3 BLLR 234 (LAC) with approval and found that -
"[A]n employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/or misconduct. To do otherwise would be to subject an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings. An employees' duties include the careful execution of his or her work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances."

The court found further that the final written warning will have added importance if the conduct to which it relates is of the same nature as the conduct the employee is subsequently charged with in the disciplinary enquiry.

An employee who demonstrates a propensity for committing misconduct cannot escape the consequences of his or her conduct simply because a past warning has expired. Disciplinary action under the Labour Relations Act 66 of 1995, as amended (LRA) is not a rigid process which fails to take into account the various parties' interests.