Drafting misconduct charges - the LAC speaks
- Judith Griessel
- Jun 1
- 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 ๐๐ข๐ถ๐ต๐ฆ๐ฏ๐จ ๐๐ฆ๐ฑ๐ข๐ณ๐ต๐ฎ๐ฆ๐ฏ๐ต ๐ฐ๐ง ๐๐ฅ๐ถ๐ค๐ข๐ต๐ช๐ฐ๐ฏ ๐ท ๐๐ฆ๐ฏ๐ฆ๐ณ๐ข๐ญ ๐๐ถ๐ฃ๐ญ๐ช๐ค ๐๐ฆ๐ณ๐ท๐ช๐ค๐ฆ ๐๐ฆ๐ค๐ต๐ฐ๐ณ๐ข๐ญ ๐๐ข๐ณ๐จ๐ข๐ช๐ฏ๐ช๐ฏ๐จ ๐๐ฐ๐ถ๐ฏ๐ค๐ช๐ญ ๐ข๐ฏ๐ฅ ๐๐ต๐ฉ๐ฆ๐ณ๐ด (๐๐141/2022) [2025] ๐ก๐๐๐๐ 2.
๐ The employees were charged and dismissed for โhaving been involved in the appointment and payment of ghost employees over a period of almost two yearsโ.
๐ 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.
๐ The arbitrator found that their dismissal had been based on a presumption that if an employeeโs 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.
๐ 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, โan 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.
ยฉ Judith Griessel
