Article 35/2022

What are the principles governing substantive fairness of a dismissal and do such principles cater for a competent verdict (a finding of guilty on a different charge than a charge faced at the disciplinary enquiry)?

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The original approach entailed that a charge sheet is required to contain the charge(s)/allegation(s) that an employee is required to answer.  Therefore, for instance, where the element of intent is absent from the charge of fraud, the employee is to be found not guilty (National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC).

However, subsequently, it was held that the above approach was unduly formalistic and the true enquiry was whether or not the dismissal was fair, with reference to the allegations against the employee or the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC).

The aforesaid identification of the true enquiry to be undertaken is based on the principle that disciplinary sanction may be imposed if:

  • the employee knew or reasonably should have known the workplace rule/standard
  • the workplace rule/standard had been contravened
  • no significant prejudice flowed from an incorrect categorisation of the alleged transgression (Woolworths v CCMA (2011) 32 ILJ 2455 (LAC), Mashigo judgment (supra) and SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)

The aforesaid three judgments of the labour appeal court also adopted the approach that all an employee is required to be informed of is that:

  • on a certain date, time and place
  • he/she allegedly acted wrongfully or
  • acted in breach of an applicable workplace standard/rule

In the light of the aforementioned summary of developments that took place, what is the content of a competent verdict within the labour law environment?

In EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), referred to with approval in the SA Police Service judgment (supra), the following was stated in this regard:

  • an enquiry is not like a criminal trial where guilt is to be proven in respect of the charge the employee faces
  • the true enquiry is as stated in the Mashigo judgment (supra), namely, a determination as to whether or not the dismissal is fair with regard to the allegations made against the employee or the standard of conduct required from the employee
  • it is too formalistic to require guilt in respect of the charge (and elements) formulated by an employer
  • a competent verdict (another charge not mentioned) is therefore permitted if there is no prejudice to the employee – it is not a requirement that the competent verdict is to be mentioned in the charge sheet
  • it is, however, well-established that the employer cannot ordinarily change the charge or add a new charge after the commencement of the hearing 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); Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA (2020) 31 SALLR 142 (LAC)).  Prejudice will be present if:
  • the employee would have conducted his or her defence differently or
  • would have had other defences (see also S v Mwali 1992 (2) SACR 281 (A))

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?