Incorrect categorisation of disciplinary charges may be insignificant.

Employers often place a high requirement on the disciplinary process and the procedure adopted. Some employers are of the view that to issue an employee with a final written warning, that such a procedure must reflect the dismissal procedure ito Schedule 8 (4) of the LRA.

Other employers are adamant that one should follow all the steps that is common ito a disciplinary hearing, i.e Opening Statement, Evidence, Cross-Examination, Re-Examination, Mitigation, Closing and so forth.?

One of the key elements of issuing discipline, whether a warning or even a dismissal, is to do a proper guilt finding. In other words, is the employee charged, guilty of the offence? This, by implication, puts a substantial burden on an employer to formulate charges that are not overly vague, that are to the point, so that the employee is not prejudiced in his or her preparation.

It should be noted though, that in Avril Elizabeth for the Mentally Handicapped, the Labour Court held a significant departure from the criminal justice model and has no requirement that a disciplinary hearing is similar to a criminal trial. With reference to the explanatory memorandum that accompanied the draft Labour Relations Bill, the court held:

‘there is no place for formal disciplinary procedures that incorporate all of the items of a criminal trial, including the leading of witnesses, technical and complex charge sheets, requests for particulars, the application of the rules of evidence, legal arguments and the like. ‘

It is thus evident that most employers and decision-makers involved in the disciplinary process are not legal practitioners and cannot be expected to operate under the same level of competence and legal accuracy that is normally expected from a legal practitioner.

This is more so reflected in the drafting of disciplinary charges. Often charge sheets are lacking detail, categorised incorrectly or simply too vague with in all likelihood leaving an employee prejudiced as they may not have an understanding of the allegations or could not properly prepare for the disciplinary process.

However, is it a requirement, in terms of labour laws, that charges should be technically, correct? What if charges were incorrectly drafted, with an employee not technically guilty of the charge, but are guilty of other forms of misconduct? The burden of proof in labour law is ’ balance of probabilities’, but what if an employer charge an employee criminally, such as ‘Theft or Fraud’ whereby the burden of proof may now be ‘ beyond reasonable doubt? Does this mean that such an employee will get off the hook merely because of a miss categorisation of the charges?

In EOH Abantu vs Brett Danney (2019) Mr. Danney was employed via an outsourcing agreement as from 2006 and employed directly from 2010. At the time of his dismissal, he was employed as a team leader Microsoft server administrator.

Wesbank purchased from Microsoft 500 ‘multiple activation keys’ for Windows 7 Professional and 5000 multiple activation keys for Windows Office 2010. The keys were intended for use by Wesbank employees for official purposes. Wesbank prohibited third parties from utilizing the software license's for which it had paid.

In 2011, Mr. Danney’s girlfriend, a database administrator, asked him to assist with the installation of Microsoft Office software on her mother’s personal computer. Mr. Danney then sent two beta keys to her mother, which he had privately downloaded. Danney’s girlfriend then asked him to resend the keys, but this time, he sent a volume license key, which he downloaded from the employer’s server. Mr. Danney’s explanation was that he did so after checking on the KMS server and thinking that he was sending the beta key he had previously sent. They key, however, did not work and they could not install the software.

The e-mail, however, was picked up by the internal forensic investigators a few weeks after it was sent. Danney was called to a meeting and asked whether he had ever sent out a Wesbank key, upon which he answered he had not. After double checking, he realized his mistake and that he had in fact downloaded a volume key. He then immediately informed the investigators of such.

Mr. Danney was suspended on 14 September 2011. A disciplinary hearing took place, at which he was charged, in essence,?for charges relating to theft, fraud, dishonesty, unauthorized removal of any material from the bank.

Mr. Danney was found to have committed the offences, although it was not established that he did so intentionally. He was, however dismissed on the 29th of September 2011 for ‘gross negligence’ instead. Mr. Danney, then filed an unfair dismissal dispute to the CCMA, where the Commissioner held that the dismissal was procedurally fair, but substantively unfair as he was found guilty of gross negligence, a charged he had not been charged with. The Commissioner argued:

‘It is common cause that the chairperson of the disciplinary enquiry could not find any dishonesty on the applicant’s part but instead he found the applicant’s actions grossly negligent. I tend to agree with the applicant’s representative that (a) charges 1 and 3 required respondent to prove intent on the applicant’s part (b) the test for negligence is whether a reasonable person in the position of the applicant would have foreseen the harm resulting from the acts or omissions and would have taken steps to guard against that harm and (c) that the test for dishonesty and negligence are mutually destructive. It is trite law that a chairperson cannot find the applicant negligent when he was not alleged to have been negligent. It is irregular for the chairperson to find the applicant guilty on some charges, on one hand, and having changed some of the charges after the conclusion of the enquiry on the other hand, but found negligence on the part of the applicant……

?The employer filed a Review of the Arbitration Award at the Labour Court. In dismissing the application for Review, the Labour Court concluded:

‘Before dealing with the issue of sanction, I need to re-emphasise that an employer is not and cannot be expected to frame a charge sheet in respect of misconduct committed by an employee as one would prepare a charge sheet in a criminal matter. The importance of a so-called charge sheet in a misconduct enquiry is to set out the allegation that constitutes the misconduct so that the employee is aware of the case he or she is required to answer. It is the allegations that constitute the misconduct which must be considered, and a conclusion arrived thereon.’

‘That much is trite. But 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. That conclusion is not so unreasonable that no other decision-maker could come to the same conclusion.’

?On appeal, however, the Labour Appeal Court concluded:

‘One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. 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.2 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 notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.’?

The LAC continued and explained that employers often embark on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. It is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorized possession or use of company property.

The principle in such cases is that, provided a workplace standard has been contravened, which the employee knew (or reasonably should have known), could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. There is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject through the general principle that the employee should not be prejudiced.

The LAC found that the finding of the Commissioner that it was not competent to sanction Danney for negligence was accordingly a material error in law and unreasonable, and the Labour Court erred in upholding it. The evidence suggests that Danney, was at least negligent.

The LAC found the dismissal of Mr. Danney to have been procedurally and substantively fair.

What we learn from this case is that as long as an employee is not prejudiced, it is merely required that an employee is aware of the allegations against him, that he broke a rule relevant to the workplace, that the rule is reasonable, consistently applied and that a dismissal is a reasonable sanction. The correct categorisation of the charge itself, is insignificant.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: [email protected]

visit: www.effectusharmony.co.za