Publications
Do formal warnings expire over time?
First published in The Independent, 25 April 2007.
My name is Ozymandias, King of Kings: "look on my works, ye mighty, and despair!"
These words were written in 1817 by Percy Bysshe Shelley - as part of a piece that he entered in a writing contest.
That piece of writing ended up being one of the most acclaimed poems ever written.
As the sonnet goes, the words above were said to be found on a statue in the middle of the desert. In essence, the message is one of irony. When first engraved on the statue, the words were supposed to inspire fear in those who read them – because the magnificence of the statue was such that even mighty people would be scared of Ozymandias.
The irony, of course, is that over time, both Ozymandias, and his statue, fell into disrepair. When discovered, the statue that was once impressive was a dilapidated version of its former self.
Put another way, time is the king of us all.
But what about in employment law? Is time so powerful that it can forgive even the most heinous crimes in the workplace?
Under New Zealand law, an employer must investigate any allegation of misconduct made about an employee. If the employer determines that the allegation is substantiated, it has a number of options open to it. The correct option for it to select is, of course, the one which matches the severity of the misconduct.
If the misconduct is so serious that it fatally wounds the relationship of trust and confidence, the employer may dismiss the employee.
If the conduct is unacceptable, but not necessarily fatal, an alternative option is for the employer to provide the employee with a formal warning. In simple terms, the point of the warning is to put the employee on notice that a more severe penalty may be dished out if a similar type of misconduct is repeated.
The employer's ability to rely upon a warning to justify dismissal on a second occasion depends, to some extent, on the period of time which has passed between warning and recurrence of misconduct. In light of this fact, it is not unusual for New Zealand employers to place time limits on formal warnings.
For example, an employer may discipline a particular event by explaining to an employee that if similar conduct occurs again within a 12 month period, dismissal might result. But in doing so, does the employer implicitly tell the employee that if misconduct occurs outside of this period, the previous warning will not be taken into account?
This issue was considered by the English Employment Appeal Tribunal in the recent case of Airbus UK Limited v Webb (14 February 2007).
Mr Webb was employed as an aircraft fitter at an Airbus factory in England. In July 2004 he received a "final written warning" after he was caught washing his car when he should have been working. He was told that the written warning would remain on his file for 12 months.
In the following year – some three weeks after the expiry of the written warning – he was caught watching television while he should have been working. In other words, for the second time he was caught "skiving off" at work.
Airbus dismissed Webb – relying on the fact that he had previously been warned about misconduct of this type. Webb appealed arguing, amongst other things, that Airbus could not rely upon the previous warning because it had expired – and that the most it could do would be to provide him with a further warning.
The Appeal Tribunal found in favour of Webb. In essence, it concluded that the employer had made a rod for its back by prescribing an expiry date for the warning. Having done so, the employer was obliged to ignore the previous warning when assessing the appropriate penalty for the second act of misconduct.
Interestingly, the Tribunal suggested that the lesson of the decision was for employers to take care when giving warnings – and to refrain, where possible, from prescribing exact limitations upon them.
The Appeal Tribunal suggested that the significance of a warning will naturally diminish over time – but all that this means is that the weight given by the employer to the warning will also diminish. Depending upon the seriousness of the misconduct, and the similarity of any recurrence, the employer might be justified in giving some significance to a warning which had been given many months – and even over a year – earlier.
Like Ozymandias, therefore, warnings do expire in time. Employers may, however, run into problems by attempting to prescribe the exact moment of their expiry.
Like Shelley's traveller, an employer who creates a rod for its back in this way may, indeed, look and despair!
Disclaimer
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
