LABOUR BRIEF NO. 422
Written by: Fiona Leppan, Bheki Nhlapho & Kgodisho Phashe (Cliffe Dekker Hofmeyr)
The employee was charged with theft, fraud, dishonesty alternatively unauthorised removal of material, breach of the confidentiality agreements and disregard of the code of ethics. He was found to have committed the misconduct but was found guilty and dismissed for gross negligence because the employer could not prove that the employee had acted with intention.
The CCMA commissioner found that the dismissal was procedurally fair but substantively unfair as the employee was dismissed for gross negligence, for which he had not been charged. The Labour Court dismissed the employer’s review application on the basis that gross negligence was not a competent verdict on the charges the employee was called upon to meet and dismissal was an inappropriate sanction where the employer had failed to prove dishonesty.
In dealing with the employer’s appeal, the Labour Appeal Court held that charges must be precisely formulated and specific enough for the employee to answer them. However, the approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly. It was the Labour Appeal Court’s view that the categorisation of misconduct in the charge sheet is of less importance.
On the issue of competent verdicts, the Labour Appeal Court found that it is common for an employee to be charged with theft and for the evidence to establish the offence of unauthorised possession. The Labour Appeal Court held that the correct approach is that it must be established that a workplace standard has been contravened, that the employee knew (or reasonably should have known) the workplace rule and that no significant prejudice flowed from the incorrect categorisation of the offence. The Labour Appeal Court concluded that there is no requirement that competent verdicts be mentioned in the charge sheet, subject always to the principle that the employee should not be prejudiced.
(Chairperson – (CEA – TESD)