A recent Labour Appeal Court judgment has shed some interesting light on this question – EOH Abantu (Pty) Ltd v CCMA and others (JA4/18) 2019 ZALAC 57 (2019) 40 ILJ 2477 (LAC)
The brief facts of the case are as follows:
The employee was employed at EOH Abantu (Pty) Ltd as a team leader for the Microsoft server administrators. The employee was dismissed in September 2011 for distributing valuable intellectual property of the employer to an acquaintance. The employee’s girlfriend requested the employee to assist with the installation of Microsoft Office software on her mother’s personal computer. The employee then privately downloaded the two beta keys and then e-mailed it. Sometime later, the employee’s girlfriend asked him again to resend the e-mail, but this time the employee sent a volume licence key which was downloaded from the server. This was then picked up by internal forensic investigators, and the employee was suspended and called to a disciplinary hearing. The employee was charged with three charges all relating to dishonesty.
After the disciplinary hearing, it was established that the employee did not act intentionally and was found guilty and dismissed on the 29th of September 2011 for a competent verdict of gross negligence.
The employee referred a dispute to the CCMA for unfair dismissal, and the Commissioner found that the dismissal was procedurally fair but substantively unfair because the employee has been found guilty of the offence of gross negligence with which he had not be charged. The matter was taken on review to the Labour Court and both the commissioner and Labour Court were of the opinion that gross negligence was not a competent verdict and that the dismissal was substantively unfair because the element of dishonesty has not been proved.
The matter was then taken to the Labour Appeal Court, and the Judge had the following to say:
“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.” But the crux of the argument is that “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”. Basically, the Judge was saying that there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet, provided that there is no prejudice to the employee.
The Labour Appeal Court found that the commissioner at the CCMA made a “material error of law” and that the competent verdict of gross negligence was correct, and that the dismissal was substantively and procedurally fair.
This judgement will have a big impact on how commissioners will view competent verdicts going forward. This case was a real victory for employers.
Always ensure that you have a competent chairperson to chair your disciplinary hearings and assess the merits of the case to ensure that a sound finding is made.
Article by: Claire Turner
Provincial Manager – Durban