There are some instances whereby it may become apparent that the employer may not be able to dismiss an employee based on the original charges. Would this mean that the employer should withdraw the charges and start over, or are there any circumstances whereby an employee may be dismissed for a charge that was not formulated on the list of charges?
Competent verdicts are well established in the field of criminal law, whereby an accused may be convicted on a lesser charge based on similar elements to that of the main charge. In Labour Law, the Labour Appeal Court was challenged on this point of Law in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18)  ZALAC 57.
The employee had provided volume software activation codes to his girlfriend to activate Microsoft Office, his defence was that he believed he had provided her with beta activation codes. Following an internal forensic audit, the employee was charged with theft, fraud, dishonesty alternatively unauthorised removal of material, breach of the confidentiality agreements and disregard of the code of ethics. He was found to have committed the misconduct but was found guilty and dismissed for gross negligence because the employer could not prove that the employee had acted with intention.
The CCMA commissioner found that the dismissal was procedurally fair but substantively unfair as the employee was dismissed for gross negligence, for which he had not been charged.
The Labour Court dismissed the employer’s review application on the basis that gross negligence was not a competent verdict on the charges the employee was called upon to meet and dismissal was an inappropriate sanction where the employer had failed to prove dishonesty. The Respondent referred the matter to the Labour Appeal Court.
The Labour Appeal Court relied on the formalistic approach of Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 LC, LRA contemplates an informal, expeditious disciplinary process requiring, in essence, nothing more than a dialogue and an opportunity for reflection before a decision is taken to dismiss an employee.
The Labour Appeal Court held that the formulating of charges needs not to be overly complex or legalistic and an employer should only set down the basis of a charge with sufficient particularity so as to ensure the employee has a fair opportunity to answer against the charges. Further, there is no requirement that competent verdicts be set down on the charge sheet.
“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”.
“Prejudice normally will only arise where the employee has been denied knowledge of the case he had to meet. Prejudice is absent if the record shows that had the employee been alerted to the possibility of a competent verdict on a disciplinary charge, he would not have conducted his defence any differently or would not have had any other defence”. As long as the employee is aware or sufficiently aware of competent verdicts, or if the defence would not have changed there is no issue of Prejudice.
In South African Police Service v Magwaxaza and Others (PA10/2017), the Labour Appeal Court confirmed the position in EOH Abantu (PTY) LTD. In this case, a Police officer shot a person at a social event and was charged with murder but found guilty of culpable homicide. The CCMA Commissioner ruled that the absence of a competent verdict on the charge sheet made the dismissal substantively unfair. On appeal, the Labour Appeal Court 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. The Labour Appeal Court reversed the decision of the CCMA and ruled that the dismissal was substantively fair.
In summary, competent verdicts are accepted in labour law disputes and that the CCMA is to adopt a less formalistic or rigid approach provided that the competent verdict bears close enough proximity to the main charges and would not prejudice the employee’s opportunity to defend himself/herself it need not be stated on the charge sheet. The sanction of a competent verdict should also be similar to that of the main charge, if the sanction does not warrant dismissal or it cannot be established that the trust relationship is irretrievably broken down, the likelihood of the success of a competent verdict will likely fail.
Article by: Wesley Lazarus
Dispute Resolution Official – George