Citing charges for a disciplinary hearing – Getting it right the first time

Citing charges for a disciplinary hearing – Getting it right the first time

When an employer initiates a disciplinary hearing, the employee being disciplined is entitled to know and understand the charges that will be put forward against them in order for them to adequately prepare. This means that employers must give employees adequate notice of the hearing and inform the employee of the charges of which the employee is accused, and this should be documented in the notification to attend the hearing.In 2019, a case at the Labour Appeal Court between EOH Abantu (Pty) LTD and CCMA and Others (EOH Abantu) established a new precedent over the accuracy of charges against employees listed in disciplinary notices.

In EOH Abantu, the employee was charged with theft, fraud, and dishonesty. As an alternative, they were also charged with unauthorised removal of material, breach of the confidentiality agreements, and disregard for the company’s code of ethics. During the disciplinary hearing, the employer could not prove on a balance of probability that the employee had acted with the necessary intent to commit these offences. However, the employee was found guilty of gross negligence, a charge not contained in the original notice, and subsequently dismissed.

The employee referred an unfair dismissal case at the CCMA, for which the commissioner established that the process had been fair but not the outcome. This was due to the employee being found guilty of a charge not listed in the notice. The employer lodged a review application to the Labour Court, arguing that gross negligence was a competent verdict on the charges as set out in the notice. However, the Court upheld that dismissal was an inappropriate sanction for the offence.

Next, the employer referred the case to the Labour Appeal Court (LAC). The LAC agreed that the charges given to the employee needed to be specific enough that the employee could answer them. However, it further stated that the approach by the CCMA commissioner and Labour Court should not have been so formulaic or technical. The LAC’s view was as follows:

1. Employers often set out charges that are too narrow or incorrect.
2. As such, the categorisation of misconduct should not weigh as heavily as it had done in EOH Abantu.
3. It should therefore not be required for the competent verdict to be listed in the charge sheet for an employee to be found guilty.
4. However, the essential details of the charge and the relevant work policy should be correct and the employee must be able to know and understand the charge.

This has afforded chairpersons of disciplinary hearings and employers more flexibility in the formulation of charges and verdicts than was previously allowed because they are no longer restricted to the exact charges as laid out in the disciplinary notice. If the ultimate reason for dismissal and the charges are related to the same incident, employees can be found guilty of lesser charges or a competent verdict, should this be proved on a balance of probability.

In sum, an employee may be found not guilty of charges as listed in the charge sheet, but they can still be found guilty of misconduct. If their actions during the incident(s) amount to misconduct, they can be found guilty of that misconduct, even though if it differs from the charges.

Reference List: 

• EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57.
• Labour Relations Act, 66 of 1995.
• https://www.labourguide.co.za/discipline-dismissal/659-the-minimum-requirements-for-a-fair-disciplinary-hearing
• Le Roux and GWK Ltd (2004) 25 ILJ 1366 (BCA).
• Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)