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Jonathan Goldberg

The relevance of expired warnings

Fri, 26 Aug 2011 10:02

Jonathan Goldberg

The issue regarding the relevance of expired warnings 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 neither labour legislation nor case law that supports such a contention.

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 such actions. The entire purpose of keeping records is to preserve details of proceedings for future reference therefore it would be nonsensical 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 deciding penalty for later misconduct. The fact that a prior warning has lapsed does not mean that prior misconduct cannot be taken into account in assessing the appropriate penalty for later misconduct. It could be relevant to show a pattern of behaviour of the employer.

Therefore the retention of warnings, even after expiry, is important as it all comprises the employee’s previous disciplinary record. An example for criminal law is that if my suspended sentence for driving has expired, I should have a criminal record for drunken driving.

Jonathan Goldberg is the CEO of Global Business Solutions. Email him at execoffice@globalbusiness.co.za