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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)?
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  • 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))
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How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

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In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?