Some of the biggest issues that initiators and chairpersons of disciplinary hearings struggle with, are the formulation of misconduct charges and how to evaluate the evidence, bearing in mind that disciplinary enquiries are not criminal trials and different principles apply. Many managers, HR practitioners, consultants and even lawyers, have not kept up to date with the developments and nuances arising from case law over recent years. What might have been ‘tried and tested’ for many years; or ‘the way we have always done it’; or ‘how I was trained’ may no longer be applicable and may lead to unexpected outcomes or wrong advice.
Misconduct proceedings should be judged holistically
The Labour Appeal Court has repeatedly expressed the view that disciplinary complaints/allegations should not be overly technical; and that chairpersons (or arbitrators, for that matter) should not consider the evidence in a piecemeal fashion that loses sight of the big picture and of the nature of workplace discipline.
In Sol Plaatje Local Municipality v SA Local Government Bargaining Council & others (2021) 30 LAC, (August 2021) the court stated: "It is trite that an arbitrator.... must apply his mind to all the evidence, and that a failure to do so may constitute an irregularity if it shows a misconception of the true enquiry, or results in an unreasonable outcome.
Don’t over-complicate disciplinary allegations / charges and findings of misconduct
The court stated further: “It has also been repeatedly held by this Court that there is a major difference between the wording of charges in criminal matters and that of charges in disciplinary proceedings, and that an unduly technical approach to the framing and consideration of the latter should be avoided.”
It often happens that employers/consultants engage in the practice of unfair splitting/duplication of charges, especially where there is a comprehensive disciplinary matrix in the organisation’s disciplinary code and ONE incident that took place, happens to intersect with more than one of the categories in the employer's disciplinary code. This then leads to a proliferation of charges arising from this single incident and presents a skewed picture of the severity of the infraction. It should always be remembered that the over-arching allegation in any disciplinary proceedings is always misconduct – and if the breach of a specific workplace rule for example causes additional consequences such as reputational harm or damage to property, those can be taken into consideration as aggravating factors, rather than listing each of these consequences as a separate charge or giving it a separate label.
Similarly, having a catch-all charge such as 'breach of trust' at the end of other misconduct allegations, does not reflect the separate breach of a workplace rule or misconduct, but rather the result of the misconduct already described - and is therefore something that is relevant to the consideration of sanction, not a charge on its own.
Plain language explaining briefly what has happened, is often the best approach. In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18)  ZALAC 57, the Labour Appeal Court said the following: “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 applicable rules or standards.”
Competent verdicts and attempted misconduct
In the EOH case, the LAC further mentioned the consequences of using incorrect wording as follows: “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. ”
The LAC made it clear that ‘competent verdicts’ are therefore acceptable in disciplinary proceedings – i.e. even if a specific allegation was not set out in so many words on the hearing notification, but is 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.
In the Sol Plaatjie case above, the court also mentioned that being able to only prove an attempt to commit misconduct, does not mean that the employee cannot be found guilty: “There is also authority in this Court that if the main charge of misconduct is not proved, but an attempt to commit such misconduct is proved, the employee may be found guilty of such an attempt on that same charge." It is trite that in theft cases, for example, it is sufficient to prove the intention of the employee to be dishonest – even if the action has not been completed, it would still constitute misconduct. Proof is often obtained via circumstantial evidence from which the inference of intended dishonesty can be drawn on a balance of probabilities. That inclination or attempt of the employee to be dishonest, could well cause an irretrievable breakdown in trust that would justify dismissal of the employee.
The bottom line is that initiators, chairpersons and arbitrators should appreciate the employment environment and understand that a common-sense approach (‘did the employee wrongfully breach a workplace rule or standard’) should not be overlooked in favour of fancy wording, rigid disciplinary matrices or legal technicalities.
© Judith Griessel
[Online workshops for Initiators and Chairpersons: www/griesselconsulting.co.za/training]