The disciplinary charge of incitement may seem simple at face value, but if you put this misconduct under the microscope, there is far more to it.
What is incitement?
In Albion Services CC v CCMA (D 275/10) [2013] ZALCD 12 the Labour Court held that the definition includes that an employee purposefully acted in such a way with the intention of influencing co-employees’ minds to commit a crime or misconduct.
Above mentioned definition was confirmed in the decision of Economic Freedom Fighters v Minister of Justice and Constitutional Development (87638/2016) [2019] ZAGPPHC 253. In this case, the High Court held that incitement involves an employee’s clear intention by either the spoken word or by the employee’s actions to purposefully influence other employees’ minds to commit a crime, or in this case misconduct.
The employer is subsequently, referring to above mentioned, burdened by the definition of this misconduct, specifically the burden of proof which employers face to prove this misconduct, as it has to be proven that the employee intended to negatively influence other employees’ minds to commit a crime or misconduct. This might prove to be extremely difficult due to the fact that employers have to prove the intention and the state of mind of the accused and what the employee’s desired outcome was in influencing other employees’ minds.
More often than not, incitement manifests itself during strike situations. Incitement still proves to be tricky, though. Section 64 of the Labour Relations Act, No 66 of 1966 (LRA) specifically grants employees the right to strike. If, for example, in such an instance an employee incites other employees and/or the union members to join the lawful strike, such conduct will not be regarded as misconduct, as they have the right to embark on that strike, which is lawful. However, should the same employee incite other employees to embark on an unlawful strike, which in this case will be misconduct, such incitement will amount to misconduct.
It is clear that this specific form of misconduct is not as simple as it seems. Employers have to thoroughly investigate cases where incitement is alleged. Provision for such misconduct, or for misconducts that are similar in nature to the misconduct that actually transpired, must be provided for in the disciplinary code. It is of utmost importance that the employer clearly stipulates the charge and facts in cases of incitement, as their case will stand or fall on this point. Employers should ensure that they lead water-tight evidence in cases of incitement, as this can be very technical misconduct. Be sure of all your facts before you choose to charge an employee with incitement.
If all the elements of incitement as mentioned in this article are, on a balance of probabilities, present in an employee’s misconduct, and you are convinced that all your evidence can prove the same, charge the employee with incitement. This might be a dismissible offence. If not, rather tread on the side of caution and rather elect the charge in your disciplinary code that suits the facts of the case/misconduct.
Article by: Johan van Dyk
Dispute Resolution Official – Cape Town