Condonation means the
forgiveness, purposeful disregard, or tacit approval by a victim of another’s
illegal or objectionable act, especially by treating the other person as if nothing

In law, the term condonation is more commonly associated with
matrimonial proceedings, in which case it is understood as the voluntary
pardoning by an innocent spouse of an offense committed by his or her partner
conditioned upon the premise that it will not happen again. Condonation, which
is used as a defence in divorce actions based on fault grounds, is strongly
supported by public policy. The institution of marriage and its preservation
are considered essential for the stability of society, and therefore
condonation is encouraged to promote the notion that marriages should not be
dissolved easily. 

Employment relations have been likened to marriages, for a number of
reasons. It is often said that
labour relations are more like ‘a marriage, not a boxing match’. It is expected
therefore that both parties will sometimes have to overlook certain infractions
from the other in the interest of the relationship. However, what happens if
the forgiving party later regrets the decision to forgive and decides to
enforce their rights against the forgiven party in respect of the forgiven
offence? Are they allowed to do so and within what timeframe? What in fact,
constitutes condonation in employment relations?   

The answers to these questions will usually depend on the
context. Hence, the answers will be provided by examining a few decided court
cases on the issue of condonation in employment relations. To begin with,
condonation may either be by the employer or employee; it may also be express
or implied. Where condonation is express, the offended party expressly waives
his right to sue or complain, by stating so in writing or where the timeframe
to react to the offence, as provided by law or contract, has elapsed.. In cases
like these, there is little difficulty in establishing condonation. The
situation is however nuanced in cases where condonation is implied. That is,
where the offended party seems to have forgiven or overlooked the
offence/breach but without actually doing so.

In anticipation of situations of
implied condonation, some employment contracts (like most other commercial
contracts) contain a “no waiver”
clause, which typically provide that delays do not adversely affect the rights
of a party to enforce the terms of the contract.However, is the offending party
allowed to simply move on with the relationship without knowing whether or not
his breach may be relied upon at some point in future to apply disciplinary
measures like suspension or even termination? On the other hand, when a party
to a contract waives
breach of that contract by the other party, it
voluntarily abandons its legal rights to enforce the contract, or to claim any remedy, in
relation to that breach.
waiver must be
clear, but may be oral or written.

Another major consideration in determining
condonation is if the offended party intends to seek remedy outside the
workplace, like suing to enforce its rights or demand damages. In such a case,
one needs be mindful of “
Law”, that is, the law that a suit must be commenced within a specific period
of time from when the injury or omission, causing the damage or loss, arose or
occurred. Grievances need to be settled in time while the evidence in support
of the claim, or the defence to a claim, is/are still fresh. Not commencing
legal action within the statutorily specified period extinguishes the right to
seek remedy. Employment contracts are classed as simple contracts. Legal
actions based on simple contracts (like recovery of debts and arrears of
interest, tortuous malfeasance which includes damages for negligence or breach
of a duty of care, account stated, etc.) must be commenced within a period of
six (6) years of the occurrence of the injury, loss or damage.

However, if the available remedy is internal, like an
employer subjecting an erring employee to its disciplinary procedure,
condonation will be implied if remedy is not sought nor applied within the
period specified for it under the employment contract or the company handbook.
Where the contract or the company handbookare silent on the period of
disciplinary proceedings, a reasonable time will be applied in determining
whether or not the employer can be said to have condoned the infraction in

A key principle in industrial relations law and practice is
that the disciplinary process must not run slowly and sluggishly, or be
unnecessarily prolonged; for otherwise, the employer stands the risk of being
subsequently barred from applying penalty. From this principle, two rules are
evident: firstly, the right to suspend an employee available to an employer is
not a right that is eternally available. And secondly, where there is an
infraction, an employer who allows the disciplinary process to run very slowly
and sluggishly stands the risk of being read to have condoned the said
infraction. As a result, courts customarily frown on a prolonged suspension,
and in some cases, quash the suspension.

In one of the decided cases,the Court expressed its
displeasure over a prolonged suspension, when the employee in question had been
suspended for a period of over 18 years. The suspension was held to be unfair
and unjust and accordingly quashed. In another case, the claimant was
erroneously suspended in 2005, recalled in 2009 and told that he will still be
investigated for what he was initially and erroneously suspended for. The Court
in this case also set aside the suspension and ordered that employee be paid
all his entitlements without any loss of benefit including arrears of his

In yet another case, the employee sued to contend his
employer’s act of summary dismissal was irregular in the sense that the employerafter
the conclusion of the investigation did not suspend, terminate, sanction or
summarily dismiss him. Rather, the employer transferred him to a different
branch as its employee to continue on the job.The employer was held to have
condoned the infractions, which he later purported to act upon in dismissing
the employee. 

The court has also held that in a case where the staff handbook
provided that ‘disciplinary proceedings for any misconduct shall be dealt with
as soon as possible’, undue delay on the part of the employer must be read as a
waiver of the right of dismissal, and that any dismissal afterwards can only be
construed as a case of victimization.

The common principle in all these cases is that where an aggrieved
party is lax in seeking remedy (and the laxity is usually for a period exceeding
one year),condonation will be implied. This means the aggrieved party must be
decisive in considering legal action in deserving cases. This is especially for
the employer, who is often required to apply disciplinary measures. When the
disciplinary process is activated, it is essential to follow the process
through completely. Employers must have robust procedures and supporting
documentation in place to effectively discipline their employees, both to
ensure procedural fairness, and to protect their position, should the employee
take action against them.

In practice, the disciplinary process starts well-invitation
to the meeting is sent, the meeting is held, all the evidence and the employee’s
response is considered, the decision is made to apply the penalty, the employee
is advised that they are getting a punishment, but then the letter never gets
issued. Often these matters are not followed up because of the difficulty of
articulating the problems, creating performance improvement plans and setting
quantifiable outcomes. Subsequently, the whole grievous process achieved so far
will be wasted.

conclusion, it is important to note that disciplinary procedures in the workplace
will be to the benefit of both the employer and the employee. Employers often
find themselves making costly procedural mistakes when disciplining or
dismissing an employee for misconduct. They may have a fair reason for
dismissal, for example the employee has stolen company goods, deliberately
damaged the employer’s property or breached health and safety rules, but if the
employer has not followed a fair procedure, this can make the whole process

Having a
clear, legally compliant and well-written procedure will guide an employer
through a good disciplinary procedure which will reduce the likelihood of
running into legal action and providing the affected employee with the much
needed feeling of fairness of the process.

Micheal Dugeri

Corporate Commercial Lawyer at Austen-Peters & Co.