Can expired warnings be considered when a chairperson makes his/her written findings and recommendation subsequent to chairing a disciplinary hearing?

Schedule 8 of the Labour Relations Act requires that all employers should adopt disciplinary rules that establish the standard of conduct required of their employees. Additionally, it is further prescribed that employers should progressively attempt to correct the behaviour of their employees by issuing warnings before resorting to measures such as a dismissal. This article deals with the effect of expired warnings and whether such warnings can be considered in determining the appropriate sanction for further similar misconduct.

It is important to note that the above-mentioned does not refer to valid warnings only and it is therefore abundantly clear that employers should not destroy expired warnings. Expired warnings may be used to justify the dismissal of an employee.

Indeed, an employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal 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.

It is therefore evident that although expired warnings may not be used as progressive steps ultimately leading to a dismissal, they may be used as aggravating factors once the employee has been found guilty of an offence and it must be decided on an appropriate sanction.

The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in determining the appropriate penalty for new matters of misconduct.

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