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INCORRECT CHARACTERISATION OF CHARGES NOT FATAL
In August 2019 the Labour Appeal Court adjudicated the case of EOH ABANTU (PTY) LTD vs Danney who had been dismissed for dishonestly giving a client’s licence keys to outsiders. The Labour Court upheld the CCMA’s award, ruling the dismissal unfair and found that, while Danney had committed this act, he had not done so dishonestly.
The LAC found that the employee had been negligent and that the employer could
have lost the client for failing to secure its confidential licence keys. The LAC
acknowledged that the employee had not been charged with negligence but upheld
the appeal on the basis that it is not unjust for an employee to be found guilty
of a charge that has been wrongly defined (e.g. dishonesty instead of negligence).
Was the LAC correct?Yes – the LAC was certainly correct. This is a timely and very welcome reminder of how far we’ve strayed from the basic concepts of the LRA – and of how we need to radically rejig the way disciplinary enquiries should be conducted in the workplace.
Way back in 2008, the Labour Court attempted the re-enforce the original thinking of the LRA – that internal disciplinary enquiries should be conducted with the minimum of formality provided they comply with the principles of natural justice. They should not be conducted as if they are criminal trials in the high court with lawyers taking complicated and obstructive technical procedural points.
Despite this laudable attempt, disciplinary enquiries in the workplace have increasingly morphed into looking and being run like criminal trials. The employee has become the “accused”. The company representative has become the “prosecutor”. The alleged acts of misconduct have become the “charges”. And the findings have become the “verdict”.
It’s not surprising that the criminal form of enquiries has led to assessing evidence and deciding outcomes based on narrow interpretations of the charges as happens in criminal trials. This strict application of criminal law has produced “not guilty” outcomes because the employer failed to prove one or more the elements of a charge.
The LAC made the following refreshing and instructive observations in the EOH case –
“However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.
The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.”
The return to simplicity will only work if the parties are “brave” enough to wean themselves off the strict formality habit. And the CCMA and Labour Court will need to encourage and support the shift to a less legalistic approach.
EOH DECISION
The Labour Appeal Court has taken a practical approach in that the law itself merely calls for “audi alteram partem”
If you go back to the Avril Elizabeth Home for the mentally handicapped case, then you will see that the Labour Court specifically said then that the LRA contemplates an informal, expeditious disciplinary process conveying in essence, nothing more than a dialogue and an opportunity for reflection before a decision is taken.
Subsequently, the CCMA Commissioners and some of the Labour Court judges have tried to read too much into the law and have brought about a highly technical procedural process. The judges have almost expected employers to be lawyers and have bogged down what should have been a simple process.
The reality is that if an employer can show that there has been a fair procedure and that there is merit for the dismissal, then the employer should be successful in defending a claim of an unfair dismissal
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