Author: Nosisa Sibanda
Warnings are usually expressed to remain “live” for a specified period, typically 6 or 12 months. But what is the position if an employee receives a warning, and then goes on to commit a second, very similar, act of misconduct soon after the warning has expired? Can the employer take the spent warning into account when deciding to dismiss?
The answer depends on whether the second act of misconduct is serious enough to justify a specific sanction on its own.
Section 8 of the Labour Relations Act (LRA) Code of Good Practice, requires an employer to apply progressive discipline in the workplace. The purpose of issuing warnings to an employee is to try and correct his/her behaviour. Warnings are not intended as punishment.
The order and validity of warnings depend on the nature and seriousness of the misconduct committed by the employee. Furthermore, an employer should keep record of all warnings issued to its employees. This includes warnings that are still in effect or which have expired.
Expired warnings may not be used as progressive steps leading to a dismissal but may be used as aggravating factors if the employee has been found guilty of committing misconduct and an appropriate sanction needs to be determined. The fact that a prior warning has lapsed, does not mean that the prior misconduct cannot be taken into account when deciding on the appropriate sanction for the matter at hand.