EXPIRATION OF DISCIPLINARY RECORDS & TIMELINES FOR CHARGING AN EMPLOYEE FOR MISCONDUCT

In the workplace, timing often makes the difference between a fair, defensible disciplinary process and one that falls apart under scrutiny. Employers sometimes hesitate to act on misconduct — either because they hope the problem will resolve itself, or because they worry about moving too quickly without gathering enough facts. On the other side, employees often argue that taking action too late is unfair or invalid.

So, when is it actually “too late” to discipline an employee? South African labour law offers some helpful guidance.

Expiry of Warnings

Disciplinary warnings don’t last forever. Each level of warning — verbal, written, or final — should have a clearly defined validity period, set out in your disciplinary code or workplace policy. For example:

• Verbal warning: valid for 3 months

• Written warning: valid for 6 months

• Final warning: valid for 12 months

Once the period expires, the warning falls away and should not be used as the next step in progressive discipline. This means if an employee commits new misconduct after the validity period has lapsed, the process starts afresh.

However, expired warnings should still be kept on record. They cannot justify dismissal, but they can demonstrate that the employee has a history of misconduct and has previously been given opportunities to improve.

Delay in Taking Disciplinary Action

Another important consideration is the time between the misconduct and the disciplinary process. Employers are expected to act within a reasonable time after becoming aware of the offence. A long, unexplained delay may weaken the employer’s case and give the impression that the matter is not serious.

That said, not every delay is fatal. In Mokoena & Others v Garden Art (Pty) Ltd (2008), the court accepted a six-week delay before the disciplinary hearing because the employer was conducting a proper investigation. The key is reasonableness:

• A short delay to gather facts, consult witnesses, or review evidence is usually acceptable.

• An excessive delay without justification can be challenged as unfair, especially if it prejudices the employee’s ability to defend themselves.

Consistency Matters

Discipline must be applied consistently. If one employee is disciplined immediately for misconduct while another is dealt with months later for the same offence, this can open the door to claims of unfair discrimination. Consistency doesn’t mean treating every case identically, but it does mean applying the same principles of fairness across the board.

Why Timing Is So Important

Taking too long to act can send the wrong message:

• To employees – that misconduct isn’t taken seriously or that rules don’t really matter.

• To unions or the CCMA – that the employer is being opportunistic, only acting when it suits them.

On the other hand, acting too hastily without a proper investigation can also lead to procedural unfairness. The balance lies in acting promptly, but not recklessly.

Best Practice Checklist for Employers

To manage timing and fairness effectively, employers can follow these practical steps:

1. Set clear validity periods for warnings - Document them in your disciplinary code and apply them consistently.

2. Keep full records - Even after expiry, keep warnings on file for reference.

3. Act without unnecessary delay - Address misconduct as soon as reasonably possible once you’re aware of it.

4. Investigate thoroughly but reasonably - Take the time you need to establish facts, but don’t drag things out.

5. Apply discipline consistently - Treat similar cases in a similar way, unless there’s a clear reason to do otherwise.

6. Use discipline to correct, not punish - Warnings are meant to guide improvement; dismissal is the last resort unless trust is completely broken.

7. Communicate openly - Explain the reasons for action so employees understand what’s expected of them.

In labour law, there is no strict cut-off date that automatically makes disciplinary action “too late.” Instead, the test is one of reasonableness and fairness. Employers who act promptly, keep proper records, and apply discipline consistently are far more likely to withstand scrutiny at the CCMA or in court.

Timing may not be everything — but in workplace discipline, it comes very close.