Fairness is the cornerstone of the employment relationship which in essence means that a fair and equitable determination needs to be made based on the interests of both the employer and the employee during any process. 

Therefore, if an employer is alleging that an employee committed misconduct, he/she should act fairly towards the employee, especially when the employee is charged and called for a disciplinary inquiry. However, in certain instances, misconduct is more than often mislabeled or incorrectly categorised since not all employers are skilled in the field of labour law, including the technical legal meaning of certain transgressions such as theft, fraud, sexual harassment, etc., which employers often misunderstand. 

In South African labour law, it is trite to prepare or respond to allegations of misconduct. An employee must be made aware of the allegations in writing and must be given sufficient information to duly prepare a response as set out in Item 4 in Schedule 8, Code of Good Practice – Dismissal.

The question, therefore, arises of whether it would be prejudicial towards an employee should he/she be found guilty of a related (often lesser) type of misconduct during a disciplinary inquiry, when the charge was mislabeled or incorrectly categorised. 

The challenge of the above presented itself in EOH Abantu (Pty) Ltd v CCMA & Others (2019) 40 ILJ 2477 (LAC), where the employee was charged with misconduct and the employer labeled the charge ‘dishonest conduct,’ whereas the employee committed and was found guilty of ‘gross negligence’ and subsequently dismissed. 

The CCMA found the dismissal of the employee to be substantively unfair as he was found guilty and dismissed of gross negligence, yet it was not the offense the employee was charged with. The CCMA further held that the employer was bound by the charges for which the employee was charged. Upon referral to the LC, the court dismissed the review application and reasoned that the employee was charged with dishonesty, and as such, the employer had to prove what the employee was charged with. The court further held that the employer failed to prove that there was any intent on the part of the employee. Thus, the employer failed to prove the misconduct and held that the dismissal was substantively unfair. 

Where the wheels came off was when the LAC concluded that the arbitrator committed a material error of law and that the decision reached was unreasonable. The LAC made important remarks in this regard, which can be considered by employers and chairpersons when dealing with a similar matter: 

The first element is that an employee must be made aware of the charges he/she needs to respond to, as it is the essential element of fairness. However, the notice to attend will be sufficient if the employee has adequate notice and information to ascertain the act of misconduct committed by him/her as alleged by the employer. 

Charges do not have to be drafted with precision, although it is always adviseable. It will suffice if the charges are worded in a manner that provides adequate information regarding the incident, which will enable the employee to respond to the allegations of misconduct. Courts and arbitrators do not need to take an approach that is too formalistic or technical when dealing with such matters, as long as there is a relationship between the charges and the misconduct for which the employee is found guilty of. Differently put, that the employee is guilty of misconduct of a similar nature as referred to in the charge sheet. 

It was further held by Le Roux & Van Niekerk in The South African Law of Unfair Dismissal that ‘in an internal disciplinary inquiry a charge need not to be meticulously drawn up as in a criminal court. Here, the rule appears to be that a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings and that he was not significantly prejudiced by the incorrect characterisation.’

The second element is that the categorisation of the alleged misconduct is of less importance. The LAC held that the key factor is that the employer must be able to show that a workplace rule was contravened, that the employee knew about the rule, that dismissal was the appropriate sanction, and that the employee suffered no prejudice due to the incorrect categorisation of the misconduct. 

Most importantly, this still does not mean that employers can change the charge or add new charges at the commencement of the inquiry, where it will be prejudicial to do so. To determine whether the employee was prejudiced, two questions can be asked; whether: 

a) The employee was denied the knowledge of the charge he/she is required to respond to; and 

b) The employee would have conducted his/her defence differently had he/she known that they could be found guilty of an offence other than the misconduct on the charge sheet. 

It was held that prejudice is absent if the record shows that the employee had been alerted to the possibility of a competent verdict on a disciplinary charge sheet. The judgment is particularly known whether the incorrect framing of allegations was prejudicial towards the employee.

It is always better if an employee is dismissed for the same charge and/or misconduct leveled against him/her. However, if the employee is dismissed for a charge that is different from the one on the charge sheet, it does not mean that the dismissal should be rendered unfair without applying the guidelines as set out in EOH Abantu (Pty) Ltd v CCMA & Others and Schedule 8: The Code of Good Practice – Dismissal. 

Therefore, the chairperson and/or HR manager appointed to conduct the disciplinary hearing must be skilled in the field of labour law to determine whether the employee’s actions constituted misconduct, especially if the misconduct is different than categorised on the notice to attend the disciplinary hearing. The LAC further held that ‘disciplinary inquiries are not court proceedings. Therefore, decision-makers need to grant some leeway to employers, especially if the employees are not prejudiced by the employer’s incorrect categorisation or mislabeling of transgressions.’

It is, therefore, advisable for employers to ask for assistance and guidance from reputable labour law practitioners before charging employees and placing them into a disciplinary inquiry. 

– Written by Megan Connoway