Drafting misconduct charges - the LAC speaks
- Jun 1, 2025
- 2 min read
The Labour Appeal Court has repeatedly over the years expressed the view that disciplinary complaints/allegations should not be overly technical; and that chairpersons (or arbitrators, for that matter) should not lose sight of the big picture and of the nature of workplace discipline.
The latest example of this was in the case of 𝘎𝘢𝘶𝘵𝘦𝘯𝘨 𝘋𝘦𝘱𝘢𝘳𝘵𝘮𝘦𝘯𝘵 𝘰𝘧 𝘌𝘥𝘶𝘤𝘢𝘵𝘪𝘰𝘯 𝘷 𝘎𝘦𝘯𝘦𝘳𝘢𝘭 𝘗𝘶𝘣𝘭𝘪𝘤 𝘚𝘦𝘳𝘷𝘪𝘤𝘦 𝘚𝘦𝘤𝘵𝘰𝘳𝘢𝘭 𝘉𝘢𝘳𝘨𝘢𝘪𝘯𝘪𝘯𝘨 𝘊𝘰𝘶𝘯𝘤𝘪𝘭 𝘢𝘯𝘥 𝘖𝘵𝘩𝘦𝘳𝘴 (𝘑𝘈141/2022) [2025] 𝘡𝘈𝘓𝘈𝘊 2.
📌 The employees were charged and dismissed for “having been involved in the appointment and payment of ghost employees over a period of almost two years”.
📌 It was undisputed that their passwords (which they updated every month) were repeatedly obtained and used by a colleague (who were later criminally charged and convicted) in order to appoint and pay 'ghost workers' over a period of 2 years. The employees provided no explanation for this.
📌 The arbitrator found that their dismissal had been based on a presumption that if an employee’s credentials were used, they could be presumed to have committed the fraud/theft - which he said had not been proved. He accordingly declared their dismissals substantively unfair. The Labour Court found this decision reasonable - in essence saying that the employees had not specifically been charged with sharing their credentials.
📌 The Labour Appeal Court however disagreed, and re-emphasised that disciplinary hearings are not criminal- or technical civil trials.
According to Schedule 8 of the LRA, “an employer is required to notify the employee of allegations of misconduct in sufficient detail and in a form and language that the employee can reasonably understand, in order to allow the employee to answer to such allegations."
It is not required that when formulating charge sheets, employers must advise the accused employee of the precise charge he is required to answer in the disciplinary hearing, or the exact legal basis for the misconduct.
The Court found that the arbitrator took an unduly narrow and technical approach to the charge sheet in finding that, even if their credentials were used, this did not prove that they had committed (or were involved in) the fraud. He had ignored undisputed evidence that these passwords were changed by the employees themselves every month, and that their colleague would not, without the involvement if the employees, have been able to obtain their updated passwords repeatedly over a period of two years in order to commit the fraud.
As such, on a proper consideration of the evidence before the arbitrator, the probabilities supported a finding that the respondents had been involved in the commission of the misconduct for which they were charged.
The judgement also serves as a reminder that the onus of proof in disciplinary matters is a balance of probabilities, and that circumstantial evidence can effectively influence this balance and tip the evidentiary scale.
© Judith Griessel
