The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.
The purpose of this article is to highlight the above principles.
_____________________________________
The labour appeal court, per Malindi AJA, reaffirmed the aforesaid principles in Murray & Roberts Cementation (supra) and, inter alia, adopted the following approach:
- In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (EOH Abantu), at paragraph [16], it was stated that, when formulating charge sheets, employers must advise the accused employee of the precise charge he or she is required to answer in the disciplinary hearing. This requirement is to ensure that the employee knows precisely what charges he or she is required to answer to. The accused employee must be afforded adequate notice and information to ascertain what act of misconduct he or she is alleged to have committed.
- In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraph [32], it was stated that:
- ‘it is an elementary principle … of labour law … that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal.’
- In Murray and Roberts Cementation (supra), the reason for dismissal was that the employee had been absent from work without permission on 29 October and 4 November 2019, as contained in the charge sheet, including the extra days that were added at the hearing. It is inescapable therefore to conclude that a number of five days was crucial for the employer to make its case. Had it not been so, the employer should have been content with proceeding with one day (4 November), or two days (28 October and 4 November), if five consecutive days had not been a requirement for dismissal. It had not been fair, therefore, for the employee to be confronted with additional dates without him having been provided or afforded adequate notice and sufficient information in order for him to prepare for the hearing and to provide answers to the allegation (EOH Abantu (supra), at paragraph [16]).
- It is not open to the chairperson of the disciplinary hearing, or the arbitrator, to interpret the charge sheet in a manner not supported by an ordinary, grammatical and contextual reading (Natal Joint Municipality Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)).
- In Sidumo, at paragraph [268], it was held that:
- ‘…where a commissioner fails to have regard to material facts, the arbitration proceedings cannot in principle be said to be fair because the commissioner fails to perform his or her mandate. In so doing … the commissioner’s action prevents the aggrieved party from having its case fully and fairly determined. This constitutes a gross irregularity in the conduct of the arbitration proceedings as contemplated in section 145(2)(a)(ii) of the LRA. And the ensuing award falls to be set aside not because the result is wrong but because the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.’
- In Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC); [2015] 5 BLLR 484 (LAC), at paragraphs [45] to [46], it was held that a commissioner undertook the inquiry in a misconceived manner by determining the appropriateness of a dismissal on the basis of reasons for dismissal which the employer did not rely upon at the time of dismissing the employee. But for this error, the court in Palluci found that the commissioner would have arrived at a different result in the award.
