If the Employer fails to prove the initial formulated charge(s) against the employee, can the employee be found guilty and dismissed on a competent charge against them?

The Labour Court in Avril Elizabeth Home for the Mentally Handicapped v. Commission for Conciliation, Mediation & Arbitration & others (2006) 27 IL 1644 (LC) determined that the LRA contemplates an informal, quick disciplinary process that calls for, in essence, nothing more than a conversation and an opportunity for reflection before a decision is made to dismiss an employee. 

In the case of EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and 2 Others (IA4/18) (LAC), the Labour Appeal Court clarified how to charge and find an employee guilty of misconduct, either at the disciplinary stage and/or following CCMA or Bargaining Council proceedings. The critical point is that the employee may be found guilty of a credible misconduct charge even if the primary charge was not established on a balance of probabilities.

In the aforementioned instance, the chairperson of the disciplinary inquiry determined that although the employer could not establish dishonesty, the employee was guilty of gross negligence and was subsequently dismissed.

At the CCMA, the arbitrator found the dismissal substantively unfair because the employee was found guilty and dismissed for gross negligence, a charge the employee had not been charged with. 

Concerning the charges, the Commissioner determined that the employer was bound by their decision at the time the employee was charged and that the employee could not be found guilty of an offence for which he had not been charged.

The employer applied to have the arbitration award reviewed by the Labour Court. The Labour Court denied the review application, ruling that the employer had failed to prove dishonesty and that the employee’s dismissal was unfair. 

When the Labour Appeal Court heard the case, the Court determined that the Commissioner and the Labour Court did not consider gross negligence and negligence to be “competent verdicts” in light of the employee’s misconduct.

It was confirmed that disciplinary charges do not need to be drafted with the precision of a criminal charge sheet, and it was added that courts and arbitrators should not take a too formalistic or technical approach. 

The Court determined that to find an employee guilty on a competent verdict, one would have to consider whether such a finding would prejudice the employee. The Court indicated that the test for prejudice, in this case, would be whether the employee would have conducted their defence differently if they had known of the possibility of a ‘competent verdict’ on the charges. 

More fully, the test would be if the employee would have conducted his defence differently if he had known that even if the employer could not prove dishonesty, he could still be dismissed for gross negligence. Would the employee be able to present evidence that he would have handled his case differently if he had known that negligence or gross negligence would be viewed as a competent charge.

The employee, in this case, could not provide any supporting evidence for a different defence and was found guilty of gross negligence. Therefore, the LAC found that the commissioner and Labour Court misdirected themselves on the question in front of them and overturned the commissioner’s findings to a fair dismissal of the competent charges.

We look forward to hearing from you in the new year and hope everyone has a well-deserved rest this festive season!

Contact us at 0861 737 263 should you have any queries regarding competent charges and how to reflect this in your company policies.