Home

 

Drafting charge sheets – super simple!

By Nicholas Preston, Director, Prinoleen Naidoo, Associate, Employment, Cliffe Dekker Hofmeyr

 

There are countless examples of workplace misconduct which may also amount to criminal offences, such as theft, fraud, corruption and bribery … the list goes on.

 

Given this overlap, employers often draft charge sheets to categorise the misconduct as “theft” or “fraud” and in doing so, utilise phrases such as “unlawful conduct”, in an attempt to amplify and/or highlight the seriousness of the misconduct or to justify dismissal as an appropriate sanction.

 

The landmark decision in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others [2006] 9 BLLR 833 (LC) affirmed the approach that for purposes of disciplinary enquiries, there is no place for legalistic procedures that incorporate all of the accoutrements of a criminal trial, including technical and complex “charge sheets”.

 

Notwithstanding this decision, many employers opt instead to continue with technically worded charge sheets so as to meet the perceived test of compliance in the forums that all too often follow.

 

This approach, however, ushers in a mechanical test of legal interpretation, which involves a painstaking dissection of each element of the charge and its legal label, hoping to reveal the absence of an essential element thereof.

 

For example, ‘Fraud’ as a legal concept, involves an intentional misrepresentation, that has the effect of prejudicing another or has the potential to prejudice another. It therefore follows that the absence of ‘intention’ for example, will result in the charge not being sustained.

 

In the recent decision of Kidrogen (Pty) Ltd v CCMA & others (Case no: C 814/2016, 31 July 2018), three newly appointed executives received payments that were not due to them and for which there was no Board approval. They were as such each charged with gross dishonesty and dismissed.

 

At the CCMA, the Commissioner found that by receiving monies to which they were not entitled and failing to ensure board approval for the payments, the executives had demonstrated incompetence and negligence.

 

The Commissioner went on to conclude, however, that because the Executives had not made the calculations or prepared the payments, which they had later received, they could not have been dishonest because dishonesty (in his view) involved deceitful intent. As such, their dismissals were found to be substantively unfair.

 

On review, the Labour Court rejected the Commissioner’s view that “dishonest” conduct (and, by implication, other forms of misconduct) for purposes of employment law, requires proof of the same elements as in criminal law – that is, deceitful intent.

 

Dishonesty in employment law is an aspect of the breach of the employee’s duty of good faith towards the employer and is measured against the standard of conduct that could reasonably have been expected of an employee acting in good faith.

 

In the present case, the Labour Court found that the executives should have foreseen the possibility that accepting the payments in question would be contrary to their contracts of employment and that they could have avoided those consequences simply by seeking clarification from the Board.

 

The Commissioners decision was therefore set aside and this is consistent with the view that employment law merely requires proof on a balance of probabilities and that there will be no room for technical or legalistic approaches.

 

To avoid complicated disciplinary proceedings and unnecessary litigation, employers should avoid using criminal law terminology (unless this had been checked by a legal professional) when drafting charge sheets.

 

Focus should ideally be placed instead on the employee’s contractual obligations as contained in either their contract of employment, disciplinary code and procedure or a work policy. To this end, such contracts, codes and policies must also be plainly drafted.

 

For more information contact Nicholas Preston at or Prinoleen Naidoo at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Employment Equity Committee Training

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

Compensation for Occupational Injuries and Diseases Course

12 September 2019

Southern Sun: Maharani Towers: Durban

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

AARTO and the Impact on Your Business

03 October 2019

Emperors Palace Convention Centre

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

21 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

22 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play