Barney Jordaan
A recent decision by the Labour Appeal Court has set a precedent in deciding whether an employee’s past transgressions relating to warnings can be used for dismissal.
Labour laws allow an employer to dismiss an employee if there is a “fair reason related to the employee’s conduct or capacity”.
It does not specifically refer to “misconduct”. So, what happens in the case where an employee with a poor disciplinary record transgresses again, but the previous warnings for a similar incident have expired?
We know that previous warnings (whether lapsed or not) cannot be used to determine if an employee is guilty of a later incident of alleged misconduct – the previous conduct only becomes relevant to determine an appropriate sanction if the employee concerned has been found guilty of a new transgression. The terminology in the Labour Relations Act suggests that an employer is not necessarily limited to a particular instance of misconduct or current warnings, when making its decision whether or not to dismiss, but may have regard to the employee’s conduct in general. Secondly, the Commission for Conciliation, Mediation and Arbitration’s (CCMA) Guidelines on Misconduct Arbitrations, which provide a compulsory set of guidelines for arbitrators to use in misconduct cases, do not in any way limit an assessment of the employee’s conduct to the latest transgression and previous, current warnings.
The case of NUM obo Selemela v Northam Platinum Ltd has now settled the matter by deciding that employers are entitled “in appropriate circumstances” to take into account the cumulative effect of past transgressions in determining whether further progressive discipline would make any sense at all. In this case, the employee was dismissed after being found guilty of refusing to obey an instruction, leaving his workplace without permission and allegedly threatening to kill a colleague.
He was found not guilty of the allegations and reinstated with a year’s salary in back pay.
The employer had the award reviewed and set aside by the Labour Court, after which the employee appealed to the Labour Appeal Court. The appeal court agreed with the Labour Court’s decision that the employee’s version of events was highly implausible and that he was indeed guilty of insubordination.
It was common cause that the employee had two previous warnings for insubordination and for leaving his workplace without permission.
He had also received a final written warning for insubordination.That warning was still valid at the time he had committed the transgressions that had led to his dismissal. The commissioner, however, had miscalculated the relevant dates and found that the final warning had lapsed.
But, the court ruled, even if the final warning had lapsed, that there was no reason why the earlier (lapsed) warnings should not have been taken into account when evaluating the fairness of his dismissal – in appropriate circumstances employers are entitled to take into account the cumulative effect of past transgressions in determining whether further progressive discipline would make any sense at all. One such circumstance is where the employee concerned is found to have a “propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings”.
The court also referred to a decision by the Labour Appeal Court, that an employer was entitled to take into account cumulative effects of these acts of negligence, inefficiency or misconduct.
It is recommended that employers not remove lapsed warnings from employee’s files and adapt their disciplinary procedures to make it clear that lapsed warnings may be taken into account where appropriate. What constitutes an appropriate case in which to consider lapsed warnings will depend on the facts of each case, but a rough guide would be to ask whether or not, given the employee’s track record, past remedial action had the desired effect.
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