Skip to main content

Article 15/2025

Under what circumstances may an employee be found to have breached a workplace standard or rule (the traditional finding of guilty) not mentioned in the original charge sheet (which should really be an investigation notification in terms of item 4 of Schedule 8 to the LRA)?
_____________________________________

  • The investigation (in terms of item 4 of Schedule 8 of the LRA) is not akin to a criminal trial where guilt is to be proven in respect of the ‘charge’ the employee faces.
  • As indicated in previous articles, the true enquiry is to determine whether or not the dismissal is fair, with relevance to the allegations against the employee and the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC)).
  • The approach is, therefore, that it is simply too formalistic to require guilt in respect of all the elements of the charge formulated by the employer.
  • It is, therefore, not surprising that the labour appeal court, in EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), found that the employee may be found guilty of a competent verdict (another charge not mentioned in the traditional charge sheet) – or, more appropriately, another workplace standard or rule not specifically mentioned in the investigation notification.
  • What is important is to appreciate the fact that a competent verdict (i e breach of a workplace standard or rule, traditionally referred to as a charge) is not required to be mentioned in the traditional charge sheet, nor is it a requirement that it must have been formulated in the charge sheet as an alternative charge (the above approach was also followed in SAPS v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)).
  • The above approach is, however, subject to various safeguards, including the following ones:
    • an employer ordinarily cannot change the allegation, or add new allegations, after the commencement of the enquiry if it is prejudicial to do so – Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); and
    • an employer may not adopt too formalistic or technical an approach, seeing that the categorisation by the employer is irrelevant when considering the true enquiry to be undertaken – Durban Confectionary Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC).
  • In conclusion, what needs to be answered is the following question: when will it not be prejudicial to find an employee guilty of a competent verdict not mentioned in the traditional charge sheet? Briefly, prejudice will be regarded as being present if:
    • the employee would have conducted his/her defence(s) differently, or
    • the employee would have had other defence(s) available to him/her. (S v Mwali 1992 (2) SACR 281 (A))
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?