Article 26/2021

Labour Edge

The traditional approach adopted in determining whether or not an employee is guilty of the alleged offence is to determine, on a balance of probabilities, whether or not he or she is guilty of the offence he or she was charged with (including all the elements of such offence).  On what basis did the labour appeal court recently, in SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC), reject such approach?


The labour appeal court, per Coppin JA (Waglay JP and Kathree-Setiloane AJA concurring), adopted a contrary approach by indicating the following:

  1. there was merit in the argument made by the employer in casu that both the arbitrator and the labour court had adopted an unduly formalistic approach and had made the cardinal mistake of wrongly focusing the enquiry on whether it had been proven, on a balance of probabilities, that the employee was guilty of the alleged offence indicated in the charge sheet, as if it were a criminal trial;
  2. the true enquiry had to be about determining, in a manner which was not unduly formalistic, whether the employee’s dismissal had been fair, taking into account the allegations made against the employee and the standard of conduct required of him (Mashigo v SAPS [2018] 10 BLLR 943 (LAC), paragraphs [14]–[17]). The approach of the arbitrator, on its own, had constituted a gross irregularity that justified a review of the award;
  3. the arbitrator, in casu, had let the employee off, scot-free, once the employer was unable to prove that the employee was guilty of the misconduct as charged – this conclusion was clearly incongruous, unreasonable, and was due to the approach adopted by the arbitrator;
  4. it seemed implicit in the arbitrator’s reasoning that the fact that the charges had not (at least expressly) mentioned the crime of culpable homicide, but of murder, meant that the charge(s) against the employee had not been proved and, therefore, no sanction had been justified;
  5. this was not only unreasonable, but unjustified in light of the following. On the assumption that there had been a charge of murder, in disciplinary proceedings there is no requirement for competent verdicts to be mentioned in the charge sheet, and, in the absence of prejudice, an employee may be found guilty of the offence that is a competent verdict (EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 40 ILJ2477 (LAC); [2019] 12 BLLR 1304 (LAC); (2019) 30 SALLR 43 (LAC), paragraphs [16]–[17]); and
  6. In Mashigo, at paragraph [16], the labour appeal court referred, with approval, to what is stated in Woolworths v Commission for Conciliation Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC), paragraph [32], namely, (quoting Le Roux and Van Niekerk The South African Law of Unfair Dismissal (Juta 1994) 102):

‘The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of the applicable rules or standards.’

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