adminthey should be kept.
In terms of good practice employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.
An employee’s past conduct can be taken into account when dismissing them, even if that conduct was the subject of a written warning which has since expired, the UK Court of Appeal has ruled.
The judgment reverses a ruling from the Employment Appeals Tribunal (EAT), which had said that in disciplinary proceedings, employers must disregard previous written warnings if their time limit has expired.
Lord Justice Mummery has said that while the warnings themselves should be disregarded that does not mean that the conduct that led to the warning cannot be taken into account in later disciplinary proceedings.
“Although the warning penalty and the record of it on the file was time-limited, the misconduct in respect of which it was given was not itself time-limited,” he said.
A Mr M. G. Webb worked for Airbus where he was an aircraft fitter. He was accused of misusing company time in 2004 when found washing his car when he ought to have been working.
He was dismissed for gross misconduct. That was changed to a final written warning whose tenure was 12 months.
Three weeks after the warning expired he was found watching television on the nightshift with four colleagues and dismissed. His colleagues were given a final written warning.
An Employment Tribunal found that Airbus’ disciplinary procedures were sound and that Webb’s actions could be grounds for dismissal.
Webb’s lawyers argued that the dismissal was unfair because his four colleagues were treated differently to him and that the only reason for this was the existence of his previous, but then expired, written warning. The tribunal and the appeals tribunal both found in Webb’s favour that the reason he had been treated differently was the existence of the expired warning.
They said that such warnings should never be taken into account after they had expired.
Lord Justice Mummery agreed in part, saying that warnings ceased to have direct effect when they expired.
He did differentiate, though, between the warnings themselves and the conduct which led to them and he said, “the warning ceased to have effect as a penalty which could be relied on as a conduct reason for dismissal”, he wrote in his ruling.
“It did not necessarily follow that the misconduct, in respect of which the penalty was imposed, ceased to have any relevance to the reasonableness of the employer’s response to later misconduct.”
The previous misconduct was a fact which was not necessarily eradicated by the penalty itself or by its expiration or by its removal from the record.
“Webb’s lawyers continued to argue that he had been treated differently because of the expired warning. Lawyers for Airbus argued that all the employees were treated the same in that for their first offence they received a written warning.”
They said that Webb was dismissed the second time because it was a second offence, and that the others had only committed a first offence and received the same punishment as Webb had on his first offence.
“There was no disparate treatment of the employees involved. They were all treated the same.
“None of them were dismissed for a first offence of misconduct,” said Lord Justice Mummery. It was the first misconduct of the four employees who were not dismissed, but received the lesser penalty of a final warning.
In the case of Mr Webb it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning on the previous occasion.
Therefore, the retention of warnings even after expiry is important as it all forms part of the employee’s previous disciplinary record.
On considering the previous disciplinary record as an aggravating factor, in Witcher/ Hullets Aluminium (2003) 12 BALR 1377 (MEIBC), the following was ruled: the applicant was dismissed for being absent without leave on two separate occasions.
He was at the time on a “consolidated final warning” for absenteeism and other unrelated offences.
The arbitrator held that, although the offences for which the applicant had been dismissed would not ordinarily in themselves have warranted dismissal, the applicant was on warning for a number of other offences.
While warnings are generally regarded as relevant only if they relate to similar offences, there was nothing wrong with warning employees against continuous breaches of company rules and policies.
The applicant understood the pervasive nature of the warning. His failure to report for duty on two successive Fridays was sufficient to trigger the consequences of that warning.
The commissioner noted further that arbitrators may interfere with employers’ decisions to dismiss employees only if such decisions are unreasonable. It could not be said that the respondent’s decision was unreasonable. The applicant’s dismissal was upheld.
So it can be seen that the employee’s previous disciplinary record is of vital importance and the chairperson of a disciplinary hearing should never fail to ask for the employee’s previous record when he is considering an appropriate sanction.
Of even more importance are the terms and conditions attached to the issue of a written warning or a final written warning.
The fact that the warning has lapsed by the passing of time does not in any way negate the terms and conditions stated in the warning, if the warning has been properly worded.
To state in a warning that “you are required to not commit any further act of misconduct during the validity period of this warning” is fatal because it means that the terms and conditions lapse when the warning lapses and are therefore no longer applicable.
Warnings should always state that “you are required to not commit any further act of misconduct whilst in the employ of this company, and you are informed that your continued employment with this company now rests entirely in your own hands”.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.
l Taurai Musakaruka is a human resources practitioner. Feedback e-mail to [email protected]
In that way, the terms and conditions of the warning do not lapse when the warning expires.
On using the expired warning as an aggravating factor, NUMSA obo Williams / Robertson & Caine (Pty) Ltd (2005) 10 BALR 1062 (MEIBC), it was ruled that prior warnings for different offences may be taken into account when assessing penalty for later misconduct.
Employee was dismissed for being under influence of alcohol during working hours. Dismissal was justified and it was noted that previous alcohol related offense, which occurred two years earlier, was taken into account here.
The applicant, a joiner, was dismissed after his supervisor had alcohol on his breath and a breathalyser test registered positive.
The applicant denied that he was under the influence of alcohol at the time. The arbitrator noted that the applicant had a poor disciplinary record.
He had received several warnings for poor timekeeping and one warning, albeit two years earlier, for being under the influence of alcohol.
Since the applicant had denied that he had a drinking problem, there was no reason why the respondent should have treated his case as one of incapacity.
The arbitrator held that the respondent had no option but to dismiss the applicant. The application was dismissed.
Therefore do not throw away those expired warnings. Nothing could be worse than having a dismissed employee get his job back because you failed to keep proper records.
Remember that the warning may have expired and no longer valid but may still be relevant.
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