Citing charges for a disciplinary hearing – getting it right, the first time

When an employer institutes a disciplinary hearing against an employee, the employee is entitled to know and understand the nature of the charge(s) against him/her. As the employee has a right to answer or provide an explanation to the charge(s) against him/her (known as the audi alteram partem rule), employers need to make sure that they provide the employee with a notice of the disciplinary hearing in which the charge(s) against the employee is clearly set out. This article will briefly discuss to what extent it is expected that the wording and categorising of offenses be correct in such notices, in line with the Labour Appeal Court’s decision in EOH Abantu (Pty) Ltd v CCMA and Others (“EOH Abantu”).

The EOH Abantu case deals with an employee who was charged with theft, fraud, and dishonesty — alternatively, unauthorised removal of material, breach of the confidentiality agreements, and disregard of the code of ethics. During the disciplinary hearing the employer could not prove that the employee acted with the necessary intent to commit the offences. The employee was, however, found guilty and dismissed for gross negligence, a charge that was not contained in the notice of disciplinary hearing.

The employee referred an unfair dismissal case to the CCMA. The commissioner found that the dismissal was procedurally fair, though it lacked substantive fairness. This was because the employee was found guilty of gross negligence which was not listed a charge in the notice of disciplinary hearing. The Labour Court dismissed the employer’s review application, which argued that gross negligence was a competent verdict on the charges as set out in the notice. The Court upheld that the subsequent dismissal was not an appropriate sanction.

The employer appealed the aforementioned decision to the Labour Appeal Court. The Appeal Court held that the charges must be precisely formulated and specific enough to place the employee in a position to answer it. The Court further held that the approach by the commissioners and courts should not be formalistic or technical. The Court’s view is that a lay person often sets out charges too narrowly or incorrectly, therefore, the categorisation of the misconduct is of less importance. The Court ultimately held that it is not a requirement that the competent verdict be listed in the charge sheet for the employee to be found guilty of it. However, the employee should never be prejudiced by the citing of an incorrect charge or verdict.

Prejudice will normally arise where the employee has been denied knowledge of the charge(s) they are expected to meet. There will be no prejudice should the employee been made aware of the possibility of a competent verdict on a disciplinary charge, and the employee is not able to conduct their defence any differently or provide any other defence.

Based on the approach of the Labour Appeal Court, it is important to note that an employer is not restricted to the competent verdict or charge as set out in the disciplinary notice. The essential details of the charge and the relevant work policy should be correct, however. The employee must be in a position to know and understand the charge. It can happen that the employee is found guilty of a lesser charge or competent verdict, should it be proved.

Therefore, it is not expected that employers should draft their notices like skilled legal practitioners. The notices should, however, be drafted in a way that places the employee in a position to know and understand the charges. The employee should not be prejudiced by the incorrect citing of a charge. It is important that the disciplinary notices contain all the essential details of the charge and/or policies which were contravened.

Reference List: 

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Resigning with immediate effect, or not?

Employees often consider to immediately terminate their employment relationship due to a new opportunity arising or to avoid responsibility when faced with disciplinary procedures. Employment relationships are governed by an employment agreement or legal statutes, and in most cases both. If an employer and employee do not expressly agree on the notice period needed for either of them to terminate their relationship, section 37 of the Basic Conditions of Employment Act, 75 of 1997 (the Act)  provides for minimum notice periods. But what happens when the employee does not follow the notice period in the employment agreement and resigns with immediate effect?

The Labour Appeal Court address this matter in Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane (2021) 4 BLLR 400 (LAC). In this matter, the employee was said to have cashed a cheque without following proper procedures. It later transpired that the cashed cheque was fraudulent, which caused the employer a loss of just under R30 000. The employee was given notice to attend a disciplinary hearing. On the day that the employee received the notice to attend the disciplinary hearing, she handed her superior her letter of resignation, stating that she was tendering her “resignation with immediate effect”.

Standard Bank proceeded with the employee’s disciplinary hearing during her contractual notice period, but the employee argued that her resignation immediately terminated the employment relationship, and that Standard Bank was therefore not entitled to proceed with her disciplinary hearing. The chairperson of the disciplinary hearing rejected this argument and proceeded with the hearing. The employee and her attorney then left the disciplinary hearing, which proceeded in her absence.

The employee was ultimately found guilty of the misconduct and dismissed. After becoming aware of the dismissal, the employee launched an urgent application in the Labour Court to challenge the validity of the dismissal.

The Labour Court held that a resignation with immediate effect terminates the employment relationship immediately and Standard Bank was not permitted to hold the employee to her notice period. Accordingly, the Labour Court declared that the employee’s dismissal was null and void. Standard Bank, however, appealed the decision to the Labour Appeal Court.

The Labour Appeal Court held that if the contract provides for a notice period, the party that seeks to terminate the contract must give or serve the prescribed notice. A party’s failure to abide by their notice period thus amounts to a repudiation of the employment agreement. The Labour Appeal Court found that the employee’s reliance on her resignation being with immediate effect was not valid. Standard Bank was therefore within its rights to hold the employee to her notice period as prescribed in her employment agreement, and to proceed with her disciplinary hearing during that period.

What is important to note from this judgement is the fact that unless the employer releases the employee from his/her obligation in terms of the employment agreement, the employee will commit a breach of agreement. Accordingly, the employee can also be held liable for damages suffered by the employer.

Employees will also expose themselves to a poor reference for future opportunities.

Should the employer, however, decide to accept the short notice, even when it contradicts the prescribed notice period, there will be no obligation on the employer to pay the employee beyond the last day on which they worked.

Accordingly, it will be best for employees to revisit their employment agreements prior to tendering their resignation or committing to any other opportunity. However, should the need arise for short notice, employees will have to engage with their employers to see if a mutual agreement can be reached to accept the notice.

Reference List:

  • Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane (2021) 4 BLLR 400 (LAC)2021) 4 BLLR 400 (LAC).
  • Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening (2016) 37 ILJ 564 (CC).
  • Basic Conditions of Employment Act, 75 of 1997.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)