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In Nchobe vs Sibanye Stillwater (Lex Info 24 February 2025. Labour Court Case number JR 1199/21) the Court turned down Nchobe’s review application. Nchobe had been dismissed for misconduct in circumstances where a colleague had received only a counselling for the same offence. The arbitrator had upheld the fairness of the dismissal.
On review a key argument of the applicant employee was that the dismissal sanction had been implemented inconsistently. At the time of the offence the employee had had no valid warnings on his record because his previous warnings had all expired. As his colleague had not been dismissed, consistency dictated that he should also not have been dismissed. However, the Court found that it had been acceptable for the employer and the arbitrator to have taken the employee’s expired warnings into account and that these warnings constituted a valid justification for the inconsistency.
This decision raises the following question: If the Court was correct in allowing the expired warnings to influence the dismissal decision and expired warnings are nonetheless valid, what is the purpose of assigning expiry dates to warnings at all?There are too many aspects of South African labour law that are unclear. And this issue of expiry of warnings is particularly problematic. The law should either clearly prohibit the use of expired warnings or should unequivocally remove the requirement for time limits on disciplinary warnings. This will give employers and employees clarity on what their legal rights are in this regard.
The prevailing case law on the subject is still NUM v Northam Platinum [2014] 9 BLLR 870 (LAC) which held that an employee’s written warnings, even after they have lapsed, may be taken into account in determining the fairness of a dismissal, if the employee is found to have a propensity to commit misconduct at convenient intervals falling outside the period of applicability of the written warnings. This case is cited with approval at paragraph 26 of the Njobe judgment.
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