November 2019

Written by: Fiona Leppan, Bheki Nhlapho & Kgodisho Phashe (Cliffe Dekker Hofmeyr)

Procedural fairness in disciplinary proceedings requires an employee to be made aware and understand the charges against him. This is not only to assist the employee in deciding how to plead but also to ensure that the employee understands the case he has to answer. Is an employer restricted to the manner in which the charges are categorised or can it find the employee guilty of competent verdicts? This question was dealt with by the Labour Appeal Court in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57.

The employee was charged with theft, fraud, dishonesty alternatively unauthorised removal of material, breach of the confidentiality agreements and disregard of the code of ethics. He was found to have committed the misconduct but was found guilty and dismissed for gross negligence because the employer could not prove that the employee had acted with intention.

The CCMA commissioner found that the dismissal was procedurally fair but substantively unfair as the employee was dismissed for gross negligence, for which he had not been charged. The Labour Court dismissed the employer’s review application on the basis that gross negligence was not a competent verdict on the charges the employee was called upon to meet and dismissal was an inappropriate sanction where the employer had failed to prove dishonesty.

In dealing with the employer’s appeal, the Labour Appeal Court held that charges must be precisely formulated and specific enough for the employee to answer them. However, the approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly. It was the Labour Appeal Court’s view that the categorisation of misconduct in the charge sheet is of less importance.

On the issue of competent verdicts, the Labour Appeal Court found that it is common for an employee to be charged with theft and for the evidence to establish the offence of unauthorised possession. The Labour Appeal Court held that the correct approach is that it must be established that a workplace standard has been contravened, that the employee knew (or reasonably should have known) the workplace rule and that no significant prejudice flowed from the incorrect categorisation of the offence. The Labour Appeal Court concluded that there is no requirement that competent verdicts be mentioned in the charge sheet, subject always to the principle that the employee should not be prejudiced.
The essence of this judgment is that an employer is not restricted to the manner in which the charges are formulated in the charge sheet. An employer may find the employee guilty of a lesser charge or competent verdict if it arises from the evidence led. However, this is subject to the employee not being prejudiced by the incorrect categorisation. It is our view that this judgment clarifies the position where charges are challenged on a technicality concerning categorisation. It suffices that the employee must be made aware of the essential details of the alleged misconduct and in what respect a workplace rule has been infringed.
K. Cowley
(Chairperson – (CEA – TESD)