How have the requirements relating to a charge sheet changed?
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The original approach was that the charge sheet utilised at an internal disciplinary enquiry, and subsequently at the appropriate dispute-resolution body, is required to contain the exact charge(s) or allegation(s) that the employee is required to answer. For example, if the employee is charged, or the allegation against the employee is that of theft or fraud, then intention is an element of such charge or allegation and, if the employer could not prove the presence of such an element, then the employee is to be found not guilty – entailing that, if intention is required, negligence would not suffice and, in this instance, even if the employer could prove negligence but not intention, the employee is to be found not guilty.
In line with this original approach, applicable to a charge or allegation sheet, all the elements of such charge or allegation are required to be proven by the employer
and, if one of the elements, for instance, cannot be proven, then the employee is to be found not guilty (and this is not a mitigating factor).
The above original approach was followed on numerous occasions by the labour appeal court – see, for instance, National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC).
However, this original approach is no longer required, seeing that such approach is not in line with the ‘true enquiry’ to be undertaken and, furthermore, is regarded as being unduly formalistic. What is the approach now to be adopted in line with the latest developments?
- The true enquiry to be undertaken in an internal disciplinary environment, or at the appropriate external forum, is to determine, in a manner not unduly formalistic, whether the dismissal is fair, with regard to the allegations against the employee and the standard of conduct required from the employee – Mashigo v SAPS [2018] 10 BLLR 943 (LAC).
- The principles underpinning such required ‘true enquiry’ are as follows, namely,
a disciplinary sanction may be imposed if:- the employee knew, or reasonably should have known, what the applicable workplace standard or rule is
- the workplace standard or rule must have been contravened
- if an incorrect categorisation of the charge or allegation took place, same is regarded as not relevant if no significant prejudice flowed from such incorrect categorisation
The aforesaid approach was adopted in Woolworths v CCMA (2011) 32 ILJ 2455 (LAC) and so followed in the Mashigo judgment (supra) and, thereafter, 19
referred to in SAPS v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC).
- In order to comply with the requirements of the aforementioned ‘true enquiry’ and to be in compliance with the underpinning principles of such enquiry, what is to be established is whether or not, when the employee is facing charges or allegations, same contains enough information for the employee to respond.
- When will there be enough information provided to the employee that he/she is able to respond? – the short, the answer is that the employee must be informed (in whatever appropriate manner) that the alleged disciplinary transgression arose:
- on a certain date, time and place;
- as he/she acted wrongfully, or
- he/she allegedly acted in breach of an applicable workplace standard or rule
(Woolworths judgment (supra), Mashigo judgment (supra) and Murray & Roberts Cementation (Pty) Ltd v Association of Mineworkers and Construction Union obo Dube and Others (2024) 35 SALLR 116 (LAC))
