In the Labour Court case of EOH Abantu v (Pty) Ltd [Case No. JA4/18], the employee had been found guilty of a charge that was not specified in the employer’s charge sheet.  In short, the employee had been found guilty of gross negligence, when gross negligence was not specifically included in the charge sheet.  On the contrary, the charge sheet included allegations of, amongst other things, dishonesty, theft and fraud.  The employee was the dismissed.

What makes this case particularly interesting is the fact that he employee was found guilty of, and dismissed, for misconduct which did not appear anywhere on his charge sheet.  Put differently, the employee “was found to have committed the offences although it was not established that he had acted intentionally”.

The employee lodged an unfair dismissal claim at the CCMA.  At the arbitration, the Commissioner held that the employee’s dismissal was substantively unfair, as the employee “had been found guilty of the offence of gross negligence with which he had not been charged”.

The arbitration award continued that “It is common cause that the chairperson of the disciplinary enquiry could not find any dishonesty on the (employee’s) part but instead he found the (employee’s) actions grossly negligent” and “I find that the (employer) is bound by the choices it made at the time of charging the (employee)”.

The employer took the arbitration award on review at the Labour Court, and lost.  The Labour Court upheld “the arbitrator had correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged.  That is why the dismissal was unfair”.

As also held by the Labour Court, the employee was charged with dishonesty, “that is the case he went to meet and that is the case that the employer could not prove”.

On appeal, the Labour Appeal Court had an entirely different view on this issue, in essence posing the question – had the Commissioner acted unreasonably “in concluding that a finding of negligence was not a competent verdict under the charge”?

In its judgment, the Labour Appeal court acknowledged that “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 … 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”.

This view was further supported in the judgment which further held that “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly.  For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unathorised possession or use of company property.  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”.

This is an entirely sensible judgment, and essentially deals with circumstances in which the alleged act of misconduct is proved on a balance of probabilities, but the employer mistakenly attributes blameworthiness to intent, rather than negligence.

The judgment went further to add that “ .. the is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced.

Make no mistake, care must be taken when drafting allegations of misconduct in disciplinary cases.