MISCONDUCT CHARGES: How precise must the wording of charges be?

LABOUR LAW in a Nutshell September-October 2021

They don’t have to be as precisely worded as charges in a criminal case. The Labour Appeal Court (LAC) confirmed this in a decision in August 2021.

The Facts

A manager instructed a supervisor and his crew at the Kimberly municipality to repair the roof of a local hall. The manager later saw that they’d dismantled an air conditioner which had been fixed to the roof. He was lenient but told them their conduct could lead to disciplinary action.

Later the same day, a security officer saw them near the municipal dump with some of the air conditioner parts in their vehicle. The supervisor said the manager had given them permission to dismantle the air conditioner. He also said they were busy with a “spin” – meaning they were selling the parts illegally.

The vehicle with the parts were taken to the municipality and secured. The supervisor and the employees then tried to force the security officer with bribes and threats to give them the parts.

Disciplinary Charges

They were charged with three counts of misconduct and dismissed. Charge 1 was described as “Sale of Municipal Property”.

SALGA Arbitration

The arbitrator found the supervisor was an evasive and unreliable witness. He rejected his version in favour of the employer’s version. Despite this, he found the employees not guilty on Charge 1.

He said the employer had not proved that the employees had sold the parts as alleged in the charge. This was because the charge alleged an actual sale and not an attempted sale. Curiously, he also found that a mere intent to sell did not amount to an attempt to steal – and that “bare intent” did not on its own justify dismissal. On this reasoning, he found the dismissal was substantively unfair and reinstated the employees.

Labour Court

On review, the employer argued that although it had not proved an actual sale, it had proved an attempt to sell. This was dishonest conduct by the supervisor and the crew. The charges were wide enough to cover dishonest conduct. Also, reinstatement was an inappropriate sanction because the trust relationship had been broken.

The Labour Court disagreed. It agreed with the arbitrator’s reasoning and findings. It said the issue before the arbitrator was “was whether, on the balance of probabilities, the employees committed the misconduct they were charged with.” The court found that the arbitrator had reached a conclusion which any reasonable decision-maker would have reached. It dismissed the review on this basis.

Labour Appeal Court

The LAC disagreed with the Labour Court and the arbitrator. It said they had adopted an overly technical approach and overlooked crucial facts. This led the arbitrator to unreasonably conclude that the charges had not been proved.

The court said it has repeatedly held that there’s a major difference between the wording of charges in a criminal case and in a disciplinary case. An unduly technical approach to the description and consideration of disciplinary charges should be avoided. Also, an employee may be found guilty of an attempt if there’s not enough evidence to prove the main charge.

On the facts of the present case, the LAC concluded that the only reasonable inference to be drawn was that the employees had acted dishonestly and in concert to steal and sell the air-conditioner parts. They were caught in the act. The court found that their dismissal was substantively fair.

TIPS: This case confirms that a disciplinary enquiry is not a criminal trial. The decision maker must consider all the facts and the context to come to a fair and reasonable conclusion. Instead of defining a charge in criminal terms – it’s better to define it for example as “Misconduct” or “Gross Misconduct” and add a “Description” to briefly summarise the facts of the alleged misconduct. This avoids an overly technical approach which the courts have repeatedly discouraged.

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[1] Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 (5 August 2021)

Source: Article by Prof Alan Rycroft in Worklaw Newsletter September 2021


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