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Managers often get stuck when having to formulate disciplinary charges and the employee’s conduct does not really fit into any of the stipulated offences in their disciplinary code. Some feel compelled to pick the closest one from the list, believing that those are the only permitted options. It is actually much simpler.

Introduction

I have on occasion chaired disciplinary hearings where the ‘charges’ presented to the employee hardly made sense in terms of what the employee had actually done - using clichéd phraseology, one-worded allegations, or bizarre combinations of offences. Sometimes, from one incident, the initiator would manage to formulate four or five separate charges to cover all of the possible categories the conduct could resort under in the company’s disciplinary code (which of course amounts to unfair splitting of charges). 

I accept that many managers or business owners have limited knowledge in this respect and find security in having a Disciplinary Code with listed behaviours and linked sanctions, and wish to stick to that. It could however become more complicated than it needs to be and not achieve what it is supposed to, if such a document is slavishly followed.

Misconduct

The starting point is to realise that a disciplinary code does not create a limited number of disciplinary offences by stipulating some examples and recommending sanctions for those. Those are guidelines in respect of the consequences for breaking certain company rules and the rules themselves are not created by this.

All discipline relate to misconduct, i.e. the breach of a valid workplace rule/standard for which the employee is culpable / at fault. The actual charge for any disciplinary offence is therefore essentially “misconduct” – which may then be further described in accordance with the facts of the case and the available evidence. If an employee is dismissed subsequent to a disciplinary process, the reason for the dismissal will be misconduct (as opposed to incapacity or operational requirements) and the sanction must be an appropriate response by the employer in reaction to the particular misbehaviour of the employee.



This approach was confirmed by the Labour Appeal Court in Woolworths (Pty) Ltd v CCMA [2011] 10 BLLR 963 (LAC):
“[32]    Unlike in criminal proceedings ………., the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes [read policies] mentioned above. It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences…….
[33]      To my mind, the misconduct charge against the employee was framed in such a manner as to have sufficiently embraced most of the specific acts of misconduct listed in the appellant’s “Honesty Code of Conduct” and the “Disciplinary Code.”

Procedural and substantive fairness requirements

The requirements for a fair misconduct dismissal is set out in section 188 read with Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act. Importantly, fairness stands on two legs – a fair reason for the dismissal (substantive fairness) and that the dismissal was effected in accordance with a fair procedure.

Procedural fairness

A fair procedure is a tool to achieve substantive fairness – procedural fairness is not in and of itself measured in terms of strict compliance with the letter of a disciplinary code.  The courts have taken the approach that a procedural deviation, error or omission per se would not necessarily entail that the subsequent dismissal was unfair. Only if this deviation resulted in actual prejudice to the employee in presenting his case, would it be unfair. (Employers whose disciplinary code and procedure has more onerous procedural requirements than those in the LRA, could be held contractually liable if their code has been incorporated into employees’ contracts of employment and the employer then does not keep to the letter of the code – but such deviation would not necessarily amount to procedural unfairness in terms of labour law principles.)

The statutory requirements for a fair misconduct procedure are set out in Schedule 8, item 4(1):
The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry.
The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
The employee should be allowed the opportunity to state a case in response to the allegations.
The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.
After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

In Chirwa v Transnet Ltd & Others (2008) 29 ILJ 73 (CC) the Constitutional Court confirmed that these provisions in the LRA are premised on the established principles of natural justice in our law. This can be described as the natural sense of what is right, wrong and fair and includes the principle that a man's defence must always be fairly heard (audi alteram partem).
The primary purpose of a fair procedure is therefore to investigate the complaints of alleged misconduct against the employee and inform him thereof; an opportunity for the employee to respond after a reasonable period with the assistance of a representative; a decision by the employer on whether misconduct has been committed and if so, the appropriate sanction; and notice of this decision to the employee. (See Avril Elizabeth Home for the Mentally Handicapped v The Commission for Conciliation, Mediation and Arbitration & Others (2006) 27 ILJ 1644 (LC).)

It is noteworthy that there is no procedural requirement under the 1995 Labour Relations Act for a formal disciplinary hearing to be conducted as per the model developed by the old Industrial Court under the 1956 LRA. The Labour Court in Avril Elizabeth (supra) was quite adamant that formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including technical and complex ‘charge sheets’, have no place in workplace procedures. However, in reality it is still the practice in most workplaces and incorporated into most disciplinary codes and procedures. It would seem that employers generally prefer formal disciplinary hearings in cases of serious misconduct, not for the sake of procedural fairness, but for the sake of substantive fairness. Although the argument has been made that the CCMA (or similar) is the forum where the “real” hearing should take place, I cannot imagine that employers are keen to wait for an arbitrator to determine, after the fact, if there had in fact been enough evidence to prove the alleged misconduct and to dismiss the employee. A cursory discussion with the employee about the allegations against him and giving him a chance to explain, hardly provides sufficient checks and balances for the employer to determine what happened and which of two or more contradictory versions should be accepted. Employers are all about risk management – reinstatement of dismissed employees on a frequent basis is probably not a risk that many businesses are willing to take.

Getting back to disciplinary charges and the requirement to inform the employee of the allegations against him ‘using a form and language that the employee can reasonably understand’ – this is obviously necessary to enable the employee to adequately prepare a response. To this end, the allegation(s) on the notification should be sufficiently clear to make the employee’s right to prepare a case in response “a real and not an illusory one” (Heatherdale Farms (Pty) Ltd v Deputy Minister of Agriculture 1980 (3) SA 476 (T)). It should not merely be a one-worded categorisation such as ‘insubordination; or a vague and generic phrase from a disciplinary code which has little connection to the actual facts of the case and the specific contravention(s) the employee stands accused of.

As we will see below, it is however not an unsurmountable problem if there are errors or omissions in the stated allegations.

Substantive fairness

The chairperson of a disciplinary hearing has to make certain determinations based on the information/evidence provided by the initiator and the employee in respect of the misconduct allegations. The substantive fairness requirements in Schedule 8 (item 7) of the LRA provide guidance in this regard, based on what an arbitrator must consider in the case of dismissal for misconduct.   
This includes determining – 

  • the existence of a valid or reasonable rule or standard regulating conduct in, or of relevance to, the workplace;
  • that the employee was aware, or could reasonably be expected to have been aware, of this rule or standard;
  • that the rule has been consistently applied by the employer;
  • whether or not the employee had contravened this rule or standard.

The employee has committed misconduct if it is found on a balance of probabilities that he has breached a valid/reasonable workplace rule that he had been aware of, without an acceptable explanation or justification.

It is clear that the rule or standard is the starting point for any misconduct investigation. The content of the allegations should therefore focus on the particular rule(s) that the employee had allegedly contravened and how/when/where this rule was breached. Workplace rules are found in many places and contravention of any of these could constitute misconduct, not only those that happen to be referred to in the disciplinary code and that are linked to a recommended sanction. Different employers also have different rules - the form and content of such rules depending on the size and nature of the employer‘s business.

The rules of behaviour typically found in disciplinary codes or codes of conduct are mostly conventional ones – e.g. rules that prohibit violence or insolent behaviour, rules requiring honesty and ethical conduct, rules about dress, time and attendance, etc. There are also rules/standards in the employer’s policies and procedures, in the employee’s contract of employment, and as part of operational functions. Some rules need not be written down or spelt out as they come from custom and practice or are implied by the common law - such as the rule that an employee may not act in conflict with the interests of his employer. The Labour Appeal Court in Western Platinum Refinery Ltd v Hlebela and Others (JA32/2014) [2015] ZALAC 20 explained that the concept of derivative misconduct stems from the principle that an employee owes a duty of good faith to his employer and that this duty is breached if the employee fails to disclose information possessed by him regarding the business interests of the employer being improperly undermined.

An employer may also discipline an employee for conduct occurring outside the workplace but which has an adverse impact upon the employment relationship. (Hoechst (Pty) Ltd v CWIU (1993) 14 ILJ 1449 (LAC); Malan v Bulbring N.O and Others (C1140/2002) [2004] ZALC 52).
 
What is the effect of getting disciplinary charges wrong?

The learned authors PAK le Roux and André van Niekerk (The South African Law of Unfair Dismissal, (Juta & Co, 1994) at 102) observed as follows:
“Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence ……. establishes unauthorised possession of company property.  Here the rule appears to be that, provided a disciplinary rule has been contravened, the employee knew that such conduct could be the subject of disciplinary proceedings, and he was not significantly prejudiced by the incorrect characterization, discipline appropriate to the offence found to have been committed may be imposed.”  
Often during hearings, employees or shop stewards nit-pick about procedural details or on specifics in the charge. The date or nature of the conduct may for example be technically misstated, but if this is rectified or clarified during the hearing without any prejudice to the employee in stating his/her case, it would not be regarded as unfair.

This was the situation in the recent case of Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018):
The commissioner in this matter had found the employees’ dismissals substantively unfair based on the wording of the charges and not based on the reasons for their dismissal. He reached this decision by following criminal procedure authority. The charge provided that the offence took place on 13 September 2010, while according to the evidence, the misconduct was committed on various occasions before that date. The commissioner found the respondents not guilty because the company’s evidence did not support the charge as per the wording in the notification.
On review, the Labour Court held that employers are not required to conduct disciplinary enquiries like criminal proceedings. The employees had been charged with breaching the rule which prohibited them from accessing information in other employees’ personal files, but in the end were found guilty and dismissed for accessing and conveying that information to a colleague. The evidence placed before the commissioner was however clear that, despite the wording on the employees’ notifications, they had full opportunity during the hearing to respond to the real underlying complaint, i.e. accessing information from other employees’ personal files and conveying it to a colleague. This was what they were found guilty on and were dismissed for.
When the commissioner had to determine whether the dismissal of the employees for committing that misconduct was fair, he however only considered the charge on the notification and looked no further, which according to the Labour Court, was the wrong approach:
“[7]………The totality of the evidence before the commissioner proves that the respondents were dismissed for breaching a valid rule of conduct. They were aware of the rule. The rule was consistently applied by the applicant and dismissal was appropriate for the breach. The fact that the respondents were dismissed for misconduct different from the one with which they were charged is of no moment because the nature of the misconduct they were accused of was made clear at their disciplinary enquiries. They were therefore not prejudiced by the difference because they were aware that they were committing misconduct which was punishable by dismissal when they accessed the information and conveyed it to Dreyer. They were afforded an opportunity to state their cases before the decision to dismiss them was taken.”

What must the sanction be if the particular misconduct committed is not specifically covered by the categories in the employer’s disciplinary code?

That is a question for another day. Suffice it to say that, even if an employer has determined a range of sanctions for specific types of misconduct in its disciplinary code, this does not preclude an external and independent enquiry into the fairness of the sanction imposed. Each case must be determined on its own merits and involves the balancing of a whole host of factors.
(Sidumo and another v Rustenburg Platinum Mines Ltd and others 2008 (2) SA 24 (CC), Samancor Chrome Ltd (Tubatse Ferrochrome) v MEIBC (2011) 32 ILJ 1057 (LAC), Magumbo v Nkomati Joint Venture and Others [2015] ZALCJHB 309.)
 
 
© Judith Griessel
www.griesselconsulting.co.za
3 July 2018