Disciplinary proceedings in South Africa have become increasingly criminalised, and the criminalisation of this process often starts when the charges on an employee’s notification to attend a disciplinary hearing are split up, even though the charges all emanate from a single alleged act or omission.
This practice has become subject to ever-increasing scrutiny from South African courts, and our courts are buckling down on the wording of charges with each new case presented before it.
The rule
Our courts have reiterated the basic rule about the formulation of charges in numerous cases, most notably the cases of National Police Commissioner v Myers and others [2012] 7 BLLR 688 (LAC) and EOH Abantu (Pty) Ltd v CCMA and Others (JA4/18) [2019] ZALAC 57 (LAC) 12 BLLR 1304 (LAC). In the latter case, for example, the learned Appeal Court Judge stated in paragraph 15:
“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.”
These cases confirm the norm that our courts expect (in relation to the formulation of charges) that: The employee need only be aware of and sufficiently understand what it is that they are being charged with to warrant a defence without any unfair prejudice towards them.
The implications of formulating charges incoherently or splitting charges
Two recent cases highlight the importance of correctly formulating charges, namely the cases of Mogane v Standard Bank (Pty) Ltd [2023] 32 CCMA 7.17.2 and Makuleni v Standard Bank of South Africa Ltd and Others [2023] 4 BLLR 283 (LAC) (8 February 2023).
In Mogane v Standard Bank (Pty) Ltd [2023] 32 CCMA 7.17.2, the Commissioner was tasked with determining whether funds received by the applicant in the case were a loan or whether these funds amounted to a gift. The applicant claimed that the funds were a loan, whilst the bank’s disciplinary code listed the “borrowing” of money from clients as an offence warranting dismissal. The respondent claimed that these funds were merely a gift.
The Commissioner succinctly explained that the parties’ dispute revolved around how the loan stood to be characterised, and this characterisation formed the basis of their arguments. The Commissioner reiterated the rule that an employee needs merely to understand what they are charged with in sufficient detail for them to raise a defence thereto, without prejudice, and that the characterisation of the loan in question as an academic dispute only served to delay the proceedings.
In Makuleni v Standard Bank of South Africa Ltd and Others [2023] 4 BLLR 283 (LAC) (8 February 2023), the Appeal Court Judge was tasked with the review of an award made by a Commissioner in finding that the branch manager in question had been unfairly dismissed. Though the formulation of the charges at hand was not the main issue in dispute, it certainly did not favour the First Respondent’s (the employer) case for the charges to be formulated as they were.
The learned Appeal Judge noted the following in paragraph 6: “Some observations about this formulation are appropriate. It comprises generalised conclusions and is bereft of a single concrete allegation of fact. A request for further particulars was de facto refused in an answer which simply said that the ‘offences’ occurred since August 2015, i.e. over a two-year period.”
The appeal was upheld in favour of the employee in this case, which serves to confirm that the formulation of charges plays an important role when the events that transpired in any case stand to be investigated.
Conclusion
For employers, these cases confirm that a simple, succinct, and sufficient description of precisely what an employee has to answer to in disciplinary proceedings can help keep disciplinary proceedings simple and aid in decriminalising our disciplinary proceedings.
Speak to one of our legal professionals for more information regarding disciplinary proceedings and splitting charges.
