In the last article that I wrote, the Labour Appeal Court ( LAC ) found that an employee can be charged with one type of misconduct and then be found guilty of another type of misconduct, and still be found guilty and be fairly dismissed. This is the legal principle known as a competent verdict.

In addition to the significance of importing competent verdicts into the labour law arena, and what the LAC had to say about this, there are some other fundamentally valuable guidelines to emerge from the judgment for both employers who are preparing disciplinary notices, as well as for disciplinary chairperson’s who are chairing disciplinary hearings. I shall return to these guidelines, but I first wish to deal with the issue of competent verdicts.

The facts of the matter that were at hand for the LAC to deal with were the following:

The employee was charged with ‘theft, fraud, dishonesty or the unauthorised removal of any material from the bank, or from any person or premises where such material is kept’ after the employee had given an activation key belonging to his employer’s client to his girlfriend’s mother to assist her with installing Microsoft onto her computer. Although the employee admitted to having done this, he thought that he was e-mailing an activation key which he had privately downloaded, and that he had thus not acted dishonestly.

The disciplinary chairperson did not find any dishonesty on the part of the employee, but the chairperson did find the employee guilty of gross negligence and dismissed him.

In arbitration proceedings the dismissal was found to be procedurally fair but substantively unfair.

Dissatisfied with this outcome, the employer took the award on review to the Labour Court, but the review was unsuccessful.

The employer then turned to the LAC.

The LAC found that the principle in such cases is that provided a workplace rule has been broken, which the employee knew (or reasonably should know) and that no significant prejudice flowed from the incorrect characterisation or labelling of the misconduct that the appropriate disciplinary sanction could be imposed.

The LAC thus found that even though the allegations against the employee were those related to dishonesty, that the employee’s dismissal for gross negligence was fair ie. a competent verdict was acceptable.

The question thus is when would an employee be prejudiced?

Prejudice would arise if the employee would have presented a different defence if the employee had known about a competent verdict being acceptable.

Put in another way, if the employee would not have conducted his defence any differently there would be no prejudice.

As indicated earlier, there are also valuable guidelines to emerge from the judgment, and they are the following :

  • Whilst the charges should be precisely formulated, it is acceptable if the charges are specific enough for the employee to be able to answer them. The categorisation by the employer of the alleged misconduct is of less importance.
  • Courts and arbitrators must not adopt too formalistic or technical an approach.

In this regard the LAC acknowledged that employers embarking on disciplinary proceedings, are not skilled legal practitioners and sometimes do define or restrict the alleged misconduct too narrowly or incorrectly, and it will thus be adequate if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place the employee is alleged to have acted wrongfully or in breach of applicable rules or standards.

  • That internal disciplinary hearings need not be conducted as criminal trials.

It should be borne in mind that it is easy to obtain the correct expert legal advice before commencing the disciplinary proceedings and before making costly errors, it is not quite as easy to get the toothpaste back into the tube by trying to repair the errors after they have been made.

Article written by Craig Berkowitz

Specialist Labour lawyer and Acting Judge in the Labour Court of South Africa

Craig can be contacted on 083 453 1822 or by email at cblaw@netactive.co.za