Competent verdicts in South African labour law

A competent verdict in South African labour law is a legal concept allowing an employee to be found guilty (and potentially dismissed) for misconduct different from the original charge on the charge sheet. This concept was confirmed by the Labour Appeal Court (LAC), ruling on more than one occasion that an employee may be found guilty of misconduct for which they were not specifically charged, as long as the finding does not prejudice the employee.

In EOH Abantu (Pty) Ltd v CCMA and Others (JA4/18) [2019] ZALAC 5, the employee had distributed a license key for multiple installations of a software product. He was initially charged with dishonesty but was found guilty of gross negligence and subsequently dismissed. At the CCMA, the employee claimed unfair dismissal based on being found guilty of an offence for which he had not been charged.

The case made its way to the LAC, which held that fairness requires employees to be made aware of the charges against them, but it does not demand overly formalistic or technical precision. “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. 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.” [my emphasis]

The LAC found in this case that the employee had been fully aware of the incident that led to the charges and that he had contravened workplace standards, and even though it was ultimately found that what he had done was (technically) rather based on negligence than dishonesty, the employee had suffered no real prejudice during the disciplinary process. The Court stated that to have found otherwise, would give the employee a technical advantage inconsistent with labour law's fairness goals.

This principle aligns with the less formalistic approach in labour disciplinary hearings compared to criminal trials, allowing for some errors in the formulation/categorisation of charges, while still ensuring fairness to employees in their defence.

The proviso of ‘no significant prejudice’ was interpreted by the Court to mean that the employee’s defence would not have materially changed had he known about the possibility of the competent verdict, and therefore that he was not unduly disadvantaged by the incorrect classification of the misconduct. In other words, it is about whether the employee knew the substance of the misconduct they had to answer to when they presented their defence. It is also not enough for the employee to vaguely ‘claim’ that they would have changed their defence, without being able to specify the details of how this would have been done.

In later decision, the Labour Appeal Court again confirmed this approach in South African Police Service v Magwaxaza and Others [2019] ZALAC 66. In this case, an off-duty police officer shot a person after a social event and was dismissed. While the CCMA Commissioner ruled that it was culpable homicide rather than murder, and that the absence of a competent verdict on the charge sheet made the dismissal substantively unfair, the LAC stated that the officer had nevertheless been found guilty of unjustifiably killing a civilian, which is a competent verdict and in turn finding that the ruling of the commissioner was unreasonable:

“[39] There is merit in the argument made on behalf of the SAPS that both the arbitrator and the Labour Court had adopted an unduly formalistic approach and had made the cardinal mistake of wrongly focusing the enquiry on whether it had been proved that the employee had murdered the deceased, as if it was a criminal trial….

[42] It seems implicit in the arbitrator’s reasoning that the fact that the charges did not (at least expressly) mention the crime of culpable homicide, but murder, meant that the charge(s) against the employee had not been proved and, therefore, no sanction was justified. This was not only unreasonable, but unjustified in light of the following. On the assumption that there was a charge of murder, in disciplinary proceedings there is no requirement for competent verdicts to be mentioned in the charge sheet, and in the absence of prejudice an employee may be found guilty of the offence that is a competent verdict.

[43] In Mashigo v SAPS, [2018] 10 BLLR 943 (LAC) this Court referred with approval to what is stated in Woolworths v Commission for Conciliation Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC), namely, (quoting Le Roux and Van Niekerk - The South African Law of Unfair Dismissal (Juta 1994) 102): “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 the applicable rules or standards.”

[44] Properly construed, the essence of charge 2 was not murder. It was alleged that the employee was guilty of contravening Regulations …… of the Firearms Control Act 3 of 2000 in that he had “committed a common law or statutory offence, to wit, murder” of the deceased. Thus, the essence was about him having committed a common law or statutory offence using his official firearm. Since it was found that this offence had been committed by the employee with his official firearm, he could not have been let-off, scot-free. There had to be a sanction. …..

[47] On the assumption that the finding of the arbitrator that the employee was guilty of negligently killing the deceased, falls within the band of findings a reasonable arbitrator would have made (which I do not find), he nevertheless committed an irregularity in not concluding, in those circumstances, that the employee had committed misconduct and, thereafter, considering what an appropriate sanction for that misconduct would be, or would have been.”

[my emphasis]

The Labour Appeal Court reversed the decision of the CCMA and ruled that the dismissal was substantively fair.

Conclusion

The LAC has therefore made it clear that ‘competent verdicts’ are acceptable in disciplinary proceedings. So, even if a specific allegation was not set out in so many words on the hearing notification, but it becomes clear during the hearing that the employee has wrongfully breached that workplace rule and could not provide an acceptable explanation, the employee may still be found guilty of misconduct and be liable for commensurate disciplinary action. The only proviso is that the employee should not have been prejudiced in his/her defence and had a clear understanding of the nature of the actual complaint.

© Judith Griessel