“You can’t fire me for that!”

25 October 2019

The practical application of Labour Relations at the workplace is ever-changing and evolving. With each case pronounced on by the courts or dispute resolution bodies such as the CCMA, previously well-known and consistently applied principles and practice can change. Line managers and even HR/ER specialists can be forgiven for feeling a little overwhelmed at times when trying to keep up with the basics pertaining to workplace discipline.

One such (fascinating) example of a significant change to principle and practice in the application of workplace discipline came about recently as a result of a decision of our Labour Appeal Court. Through this case, the concept of a “competent verdict” has for the first time become feasible in labour matters. In layman’s terms, this means that an employee may now be found guilty of, and dismissed for, misconduct which was not contained on the original charge sheet presented to the employee prior to his/her disciplinary enquiry. This can be likened to the long-established concept in criminal cases of, for example, a person being charged with murder but being found guilty of culpable homicide. Remember Oscar Pistorius?

In the particular case referred to above, an IT Consultant was initially charged with theft, fraud and dishonesty, but was found guilty of, and subsequently dismissed for, gross negligence. Both the CCMA and the Labour Court found that his dismissal was unfair as he had been dismissed for an offence which he had not been charged with. When the Labour Appeal Court considered the facts of the case, however, it saw things differently. The LAC found that an employee can be found guilty of, and subsequently dismissed, for misconduct which is not specifically stated in the charge sheet. But, of course, there is a very important proviso – the finding of guilt and subsequent dismissal must not prejudice the employee in any way.

You may be forgiven for asking: “How does this make any sense?!”. The simple answer relates to whether the employee would have brought a different defence if he or she was facing the different charge. If so, it would not be fair to find the employee guilty and certainly not to dismiss him or her.

The essence of this very recent (August 2019) LAC judgement is as follows:

If an employee breaches a workplace rule which he or she knew (or should reasonably have known) could lead to serious discipline, and the employee is not prejudiced in any way by the fact that the charge was incorrectly framed, an appropriate finding and disciplinary sanction can be imposed even though the original charge refers to a different description or labelling of the misconduct. This is the concept of a “competent verdict”.

Of course, first prize in any disciplinary matter is to frame the charge against the employee accurately from the outset. For this reason we always advocate for a charge to be worded in line with the actual behaviour in question, for example “Misconduct in that on [date] you failed to follow standard operating procedure whilst offloading the vehicle” or “Misconduct in that on [date] at approximately [time] you exited the premises in unauthorised possession of a video camera belonging to the organisation”, etc. Framing the charge in this manner based on the actual behavior to be proved will effectively avoid any risks associated with the concept of a competent verdict.

Compiling a disciplinary charge is but one example of many potential challenges that can present themselves when dealing with serious misconduct at the workplace. Join us for a one-day course on 20 November 2019 in Johannesburg during which we will explore further potentially challenging areas when preparing for and presenting cases in internal disciplinary enquiries.

- Vanessa Botha