All too often employers are expected to be technically correct when drafting disciplinary charges. But is this fair to the employer? What if the employee has not been prejudiced?
Guidelines
Before dismissing an employee for misconduct there has to be an investigation to determine whether there are grounds for dismissal. “This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.” – Item 4 of Schedule 8 of the Code of Good Practice issued in terms of the Labour Relations Act (“The Code”).
These guidelines seem simple enough. As we can see, there are no legal-technical requirements when it comes to disciplinary charges. Yet, employers have repeatedly been found to fall short. An example of how conflicted arbitrators and the courts have been on this issue can be found in the case of EOH Abantu vs CCMA and others (2019).
Wrong charge
In the EOH Abantu case the employee worked for Wesbank as a team leader for the Microsoft server administrators. He sent some computer software, including a volume licence key which he downloaded from his employer’s server, to his girlfriend’s mother to help her to install Microsoft Office at home.
The employee was charged with, amongst other things, “theft, fraud, dishonesty or the unauthorised removal of any material”, “being in breach of the Bank’s confidentiality agreements and/or divulging such confidential information” and that he “dishonestly distributed the Wesbank Microsoft Office licence keys”.
Although the employee was found to have committed the offences, it was not established that he had acted intentionally. He was dismissed for gross negligence. He referred an unfair dismissal dispute to the CCMA. The commissioner found the dismissal was procedurally fair, but substantively unfair, because the employee had been found guilty of gross negligence, something with which he had not been charged. The company took the matter on review to the Labour Court.
Labour Court
The Labour Court (LC) agreed with the finding of the CCMA. The judge put it as follows: “… in this case, the employee was charged with dishonesty. That is the case he went to meet and that is the case that the employer could not prove. The arbitrator correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged. That is why the dismissal was unfair.”
Labour Appeal Court
The Labour Appeal Court (LAC) came to a different conclusion. According to the LAC “(t)he issue may be confined to determining whether the commissioner acted unreasonably in concluding that a finding of negligence was not a competent verdict under the charge”. (The concept of “competent verdict” comes from criminal law. An example is where a person is charged with murder. If intent is not proven, the person can still be found guilty of culpable homicide. Culpable homicide is, therefore, a competent verdict to the charge of murder.)
The LAC ultimately found that, even though negligence was not mentioned in the charge sheet, it was still a competent verdict. The employee could, therefore, be found guilty of negligence if the elements for negligence were present in the misconduct.
Prejudice
The LAC acknowledged the fact that employers are not expected to be skilled legal practitioners. Employers could be excused for formulating of disciplinary charges that are too narrow or incorrect.
What is of importance, though, is that the employee is not prejudiced. Prejudice would normally only arise where the employee does not know what case he or she is facing. If the employee would not have conducted the defence any differently or come up with a different defence (that is, if the charges had been correctly formulated), it indicates that there has been no prejudice.
Negligence
In the current case the LAC found that the employee had been guilty of negligence, as he had failed to exercise the standard of care that could reasonably be expected of him. His conduct could have caused damage (in the form of reputational harm) to the employer.
Considering the nature of the offence, the employee’s seniority and role, as well as his relatively short service, dismissal was justified.
Principles
The LAC summarised the relevant principles involved in the formulation of disciplinary charges as follows:
– An employee must be made aware of the charges against him or her.
– The charges must be specific enough for the employee to be able to answer them.
– The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing, where it would be prejudicial to do so.
– However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach.
– It normally will be sufficient if the employee has adequate information to ascertain what act of misconduct he or she is alleged to have committed.
– The categorisation by the employer of the alleged misconduct is of less importance.
Conclusion
The judgement in the EOH Abantu case provides employers with some relief. One does not have to be overly legalistic or formalistic when drafting disciplinary charges. However, the charges should be drafted with sufficient care to satisfy the principles spelt out above.
Jan Truter for www.labourwise.co.za
Would like to learn more.
Yes if possible give more elaboration to above subject
Day,
I was dismissed for contravention of covid 19 regulations. Incident happened in 2020 and charged and dismissed 2022. All HODs violated the same regulationc in 2020 but were not suspendedd not charged by the company. Can this be fair where the compsny apply the disciplinary policy selectively. Also can I be charged by a person who is on the same level as me under the justification that the initiator is a delegated person but she is on the same level like me.
As a general rule it is unfair to be selective or inconsistent in disciplining employees. On the face of it you were treated unfairly and I would suggest that you refer an unfair dismissal dispute to the CCMA
Interesting decision…i was under the impression that a charge need to directly link to the incident or indictment..also noteworthy how employers misuse the term” gross” as if there could have been intent..
We always appreciate your information and updates immensely. I think the employers should retain your services in order to avoid making mistakes, losing money and their time. We must just focus on growing our businesses because Labour Law is changing faster than the weather and we do not have time to catch up any more. Department of labour is breathing on our necks twice a year demanding all sorts of things. Your services and updates are our solution for our businesses. Thank you once again for a job Well done – From Hafida Hamel and Nostar Maroga @ Ecotel Lodges south Africa
Interesting judgement
I am not a legal practitioner but HR consultant and am always astounded at the slant always taken regarding the errant employee – its almost as if the actual misconduct is excusable – to the point that it seems it never even occurred. The image of the big bad company is all too prevalent in Labour proceedings yet the misconducts do occur and where they are serious companies have to act – to expect micro,small and medium enterprises to be able to get a legal practitioner in is too costly and just not possible … yet they must protect their business and ultimately the other employees jobs.
Nonetheless thank you for an enlightening article especially the aspect of a competent verdict – most interesting.
True that very interesting on competent verdict
The outcome of LAC is doubtful the employer have all resources to consult with legal before charging the employee. Why the employee have to suffer for the employers carelessness by charging the employee incorrect most of the employers they take the employees to DE using emotions . Simphiwe Mcoboki
An employer would not be excused if an employee is prejudiced by being served with charges that are unrelated to the misconduct or that the employee cannot reasonably be expected to understand.
I think this is a learning curve to employers to revisit charges with the assistance of legal advisors within the employment to avoid uncertainty of disciplinary process.
I am still not sure why should the LAC rule in favor of the employer in the matter of EOH ABANTU because it is important that employers should always consult with legal advisors before taking disciplinary action against the employee to ascertain charges. The ruling of LAC is still doubtful and can be challenged in the CC.
We welcome the outcome in this case, but there can be no harm in consulting with legal advisors.
Well that is great food for thought
This certainly is good education to employers of small/medium ‘not-too-formal’ businesses which often lack the capacity to manage or establish sound human resources department. It is a great relief and a should form good groundwork where disciplinary charges are sought. Thanks for the enlightenment – Lenkoe Mathaha.