DEFINING CHARGES: Do disciplinary charges always have to be defined like criminal charges to stick?
“No” – said the Labour Appeal Court (“LAC”) in an appeal decided in August 2019
There’s often a similarity between misconduct charges in the workplace and charges in the criminal court. In criminal law, each crime has defined “elements”. For example, the elements of the crime of theft are –
1. The taking of personal property;
2. The property belongs to another;
3. The taking away was done with intent to gain;
4. The taking away is accomplished without violence.
The prosecution must prove each one of these elements beyond a reasonable doubt to secure a conviction. If it fails to prove one or more of them on the evidence, the accused must be found not guilty. A finding of guilt when all elements have been proved is referred to as a “competent verdict”.
Unfortunately, disciplinary enquiries in the workplace have increasingly morphed into looking and being run like criminal trials. The employee has become the “accused”. The company representative has become the “prosecutor”. The alleged acts of misconduct have become the “charges”. And the findings have become the “verdict”.
It’s not surprising that the criminal form of enquiries has led to assessing evidence and deciding outcomes based on narrow interpretations of the charges as happens in criminal trials. This strict application of criminal law has produced “not guilty” outcomes because the employer failed to prove one or more the elements of a charge.
This happens even when there is enough evidence to prove that the employee breached a rule. In other words, a guilty employee “gets away with it” only because the employer defined the charges as if they were criminal charges but could not prove one or more of the elements of the charge.
The LAC’s judgement in the EOH v Danney case changes this.
Danney, an EOH employee, downloaded a protected software licence key from a customer’s (Wesbank) server. This was prohibited. He then used it to install the Microsoft Office software on his girlfriend’s mother’s personal computer.
He was charged primarily with –
“…theft, fraud, dishonesty or the unauthorised removal of (any) material from the Bank…. in that you dishonestly distributed the Wesbank Microsoft office licence keys to…etc.” [Abbreviated]
He was found to have committed the offences but not of having done so intentionally. He was dismissed for gross negligence and he referred a dispute the CCMA. The Commissioner found that the dismissal was substantively unfair. This was because Danney had been found guilty of the offence of gross negligence for which he had not been charged.
The Commissioner said –
“I find the respondent (EOH) is bound by the choices it made at the time of charging the applicant.”
In other words, the Commissioner reasoned that the finding of guilty on the charge of theft was not a competent verdict because the element of intent (dishonesty) had not been proved. The Labour Court agreed with the Commissioner on review.
The LAC disagreed with the Commissioner and the Labour Court’s decisions. It confirmed that Danney’s dismissal was substantively fair. Amongst others, it reasoned as follows –
 “The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so.
However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will 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.
 Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly.
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 applicable rules or standards.
 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.
TIP: An employer should avoid dealing with disciplinary enquiries as if they are trials in the criminal justice system. Labour law is concerned with fairness and the impact of breaches of workplace rules on the employment relationship. An employer should rather refer to the rule which the employee is alleged to have breached and define the breach as a wrongful act which has damaged the employer’s relationship of trust with the employee.
labour lawyer & mediator
 JA 4-18 EOH Abantu (Pty) Ltd v Brett Danney & others 15 August 2019