What can we take away from the EOH Abantu LAC judgment?

Let me disclose from the onset that I acted on behalf of Mr Danney. These are my thoughts.

The LAC concluded that there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet. Furthermore the court determined that the former employee was negligent and therefore dismissal was appropriate in the circumstances.

The applicant was dismissed on 29 September 2011 for “gross negligence” even though he was not charged with this offence but was in fact charged with “dishonesty”. The Commissioner concluded that the test for negligence, namely whether a reasonable person in the position of the applicant foresaw the harm resulting from the acts or omissions and would have taken steps to guard against that harm and the test for dishonesty are mutually destructive. The Commissioner and the Labour Court concluded that gross negligence and negligence are not competent verdicts to a charge of dishonesty.

The LAC correctly held that one of the key elements of fairness is that an employee must be made aware of the charges against him and be given a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them. The LAC further reiterated that the employer cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so. Fair comment.

However the LAC concluded that there is no requirement that competent verdicts in disciplinary charges should be mentioned in the charge sheet subject to the general principle that the employee should not be prejudiced. This in my view is the contentious part of the judgment. 

The LAC correctly held “Employers embarking on disciplinary proceedings, not been skilled legal practitioners, sometimes to final restrict the alleged misconduct too narrowly or incorrectly.” Fair comment. Similarly employees are not skilled legal practitioners and have less resources to determine how to deal with disciplinary processes.

The LAC endorses the concept “competent verdict”.

Whilst a competent verdict is generally understood within a criminal law sense, and is indeed regulated by the Criminal Procedure Act, no such regulatory apparatus exists within the world of labour law. 

For example a competent verdict is permissible in a criminal law if the evidence establishes the elements of the offence for an alternative charge provided that the competent verdict is expressly provided in terms of the range of offences set out in sections 256 to 270 of the Criminal Procedure Act.  For example in terms of section 265 it is provided that if the evidence on a charge of receiving certain property known to have been stolen does not prove that offence, the offence of theft the accused may be found guilty of the fence so proved

Does competent verdict in the labour sense have the same meaning? Clearly not because the Criminal Procedure Act statutorily regulates the principle of competent verdicts. Absent a similar structure the use of competent verdicts in disciplinary enquiries is ill-conceived and fraught with difficulties.

In this matter the LAC concluded that the evidence established negligence but not dishonesty. However as the Labour Court correctly noted the test for these offences are mutually destructive. In other words the evidence necessary to establish an act of dishonesty could not also establish negligence. 

If we move away from this notion what does the LAC decision tell us?

First, if the evidence establishes misconduct on another basis even though the employee has not been charged with that misconduct, it is still fair to dismiss an employee.

Second, an employer is not required to advise an employee of the “competent verdict” in the charge sheet. Put another way an employer is not obliged to advise an employee that although he is charged with dishonesty if the facts establish another offence, he may be dismissed for that offence.

This entire approach completely contradicts the well-established principle that an employer cannot change the charges after the commencement of the hearing where it would be prejudicial to do so. The notion of competent verdict goes so much further, that is the employee does not even have to be told what the competent verdict may be in order to be found guilty of it. How is this fair to the employee?

The LAC held the following “Danny submitted that he had been charged with negligence (as a main or alternative charge) the evidence lead would have been different, including different submissions in mitigation and aggravation in the event of a guilty finding. He failed, however, to identify what that different evidence would have been. In any event, the negligence was established in Danny’s own version.”

What the LAC is saying here is that it made no difference what evidence was led, because Danney was guilty of negligence even on his own version. 

But this approach fails to deal with the fundamental principle that an employee is entitled to know the charge that he has to face. The LAC’ held “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 is alleged to have act wrongly or a breach of applicable rules and standards”.

This has nothing to do with competent verdicts but more to do with the fact that the LAC is saying it does not matter what you charge the employee with, so long as the employee understands the allegations on a factual level. 

The problem with this approach is that breaches of applicable rules and standards are associated with types of misconduct that ought to be properly described.

It is a fundamental principle of our law that an accused is entitled to understand the nature of the allegations against him or her. That this may be achieved by a narrative of the facts giving rise to the complaint does not mean that an accuser is not obliged as a matter of fairness to articulate precisely, as far as possible, the nature of the complaint. The reason why employers have disciplinary codes and procedures, [the good ones have narratives to explain what is meant by negligence, gross negligence, dishonesty], is to ensure that employees understand precisely the rules that apply within the workplace, and the type of sanction that an employee is likely to face in the event of breaching such a rule or standard. Clearly there is a correlation between a company’s rules and a breach of those rules. 

When an employee is charged with misconduct usually he is charged with breaching a particular rule. The LAC decision now permits the employer to dismiss an employee for an offence that he is not even being charged with. 

Practically, how does an employee who is charged with dishonesty know that he ought to cover his bases and prepare a defence against negligence and ensure that his argument is cogent on that point because the chairman of the disciplinary enquiry may have regard to negligence as a competent verdict even though the elements of the misconduct are fundamentally different on the charge sheet makes no mention of negligence. 

Does this mean from a procedural point of view that the chairman of the disciplinary enquiry has to consider notions of competent verdicts and advise an employee that he may be found guilty of other offences not mentioned in the charge sheet.

So this judgment instead of providing clarity on a practical level in the workplace, has just made it more contentious.

By Kevin Allardyce (Partner)

NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za

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