A lapsed prior warning could still be an aggravating factor

Posted: June 19, 2013 in Uncategorized

The Labour Appeal Court very recently in National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2013] ZALAC 10 per Ndhlovu JA held that “[e]ven if it were to be accepted that Selemela’s previous written warning, final or not, had lapsed that fact should not have relieved the commissioner from taking the written warning into account in determining whether or not the dismissal was fair, particularly bearing in mind that the previous transgressions were only five months old and, more importantly, startlingly similar to the present misconducts, namely, failing to obey a lawful instruction and leaving the workplace without permission. Such persistent insubordinate behavioural conduct could justifiably not be tolerated by any employer”


The principle that regard may be had to “lapsed” warnings stems from the dicta of Nicholson AJ in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) where he stated that “[i]t must also be recalled that there was in existence a written warning dating from March the previous year with a 12-month duration [which lapsed prior to the transgression]. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. 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… I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal. That seems to be the purpose of the warning issued in October to the appellant. I am of the view that an employer is always entitled to look at the cumulative effect of the misconduct of the employee.”

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