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)).

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?