Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee. Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing. There are a number of reasons for this.
To begin with, employers often accuse employee’s of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Secondly, terminology is used which is, on occasion, used inappropriately. For example, acts of misconduct are described as being of a gross nature when in fact the employer does not appreciate what distinguishes so-called gross misconduct from ordinary misconduct. In this regard it is not uncommon for an employer to compile an allegation of gross insubordination when in fact the employer cannot distinguish between ‘gross’ and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him’/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has in fact not furnished them with enough information in the charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The CCMA and Labour Court have been required to address numerous disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court prior thereto.
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”. Case law supplements this by providing that allegations must inform the alleged offender of what s/he is alleged to have done (or not done as the case may be) and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02) the commissioner held that “The charges should be specified with sufficient particularity to enable the employee to answer them. This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of correctional Services & others (1999) 20 ILJ 2416 (LC))”.
In short, the employee should not be expected to have to speculate what the precise allegations are being levelled against them.
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