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?
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).
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.
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.
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.
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.
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.
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