In the matter of NUM obo Selemela v Northam Platinum Limited , the Labour Appeal Court (“LAC”) held that lapsed warnings may be taken into account when determining the fairness of an employee’s dismissal.
Such lapsed warnings should be considered in circumstances where the employee displays a propensity to commit acts of misconduct at convenient intervals falling outside the period of validity of the written warnings.
The LAC relied upon its earlier judgment in Gcwensha v CCMA and Others , where it held that the employer was entitled to dismiss the employee who had not been on final warning but had received a string of warnings for incompetence, negligence and inefficiency before his dismissal for gross negligence. The court was of the view that the employer was, in the circumstances, entitled to have regard to the Appellant’s personal file and by so finding, the Labour Appeal Court confirmed the rule that progressive sanctions prescribed by disciplinary codes are not necessarily cast in stone. In that regard Nicholson JA stated as follows:
“An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open 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 employee's duties include the careful execution of his 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.”
In Northam Platinum, the LAC found that the commissioner ought to have taken the previous written warning into account, albeit that the warning had lapsed, in determining an appropriate sanction particularly bearing in mind that the previous transgression was only five months old and substantially similar to the present misconduct. The LAC held that “such persistent insubordinate conduct could justifiably not be tolerated by any employer”.
This decision beings welcome relief to employers who have to deal with repeat or recalcitrant offenders in the workplace, who conveniently commit substantially the same misconduct after the previous warning has lapsed.