Article 27/2021

Labour Edge

An employer charges an employee in a charge sheet with having committed misconduct A.  On what basis has the labour appeal court recently indicated that an appropriate disciplinary sanction may be imposed in respect of misconduct B, not mentioned in the charge sheet?

The labour appeal court, in EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC), adopted the following approach to such scenario:

  1. courts and arbitrators must not adopt too formalistic or technical an approach. It would normally be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance (Durban Confectionary Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC); National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC); [2012] 7 BLLR 688 (LAC), at paragraph [97]);
  2. employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property;
  3. 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 could be imposed (see Le Roux and Van Niekerk: The South African Law of Unfair Dismissal (Juta 1994) 102 and 157);
  4. 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 applicable rules or standards; and
  5. in short, there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced. Prejudice normally will only arise where the employee has been denied knowledge of the case he has to meet. Prejudice is absent if the record shows that, had the employee been alerted to the possibility of a competent verdict on a disciplinary charge, he would not have conducted his defence any differently or would not have had any other defence (see S v Mwali 1992 (2) SACR 281 (A)).

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.