LAC confirms that disciplinary charges are not criminal charges
30 Sep 2019
Employers’ disciplinary processes and procedures are often steeped in formalism and contain elements of a criminal prosecution. Procedures such as these are not what is envisaged by the Labour Relations Act 66 of 1995, as amended (“the LRA”). One of the fundamental changes that was brought about by the LRA was that disciplinary enquiries would move away from a criminal model and instead adopt a less formalistic approach.
This is clear from the well-known judgment of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 1644 (LC) where the Labour Court found that the 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.
Despite this, employers have been slow to adopt less rigid disciplinary procedures and the formulation of disciplinary charges in particular has retained its criminal law character. The content of the charges contained in the charge sheet became the bone of contention in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and 2 Others (JA4/18) (LAC).
In this case, Danney (“the employee”) was employed by EOH Abantu (Pty) Ltd (“the employer”) in September 2010 and was required to perform payroll administration services to one of the employer’s clients, being Wesbank. On 20 June 2011, the employee’s girlfriend asked him to assist her with the installation of Microsoft Office on her mother’s personal computer. The employee acceded to this request and sent beta keys (a type of software activation key used to activate pre-released software) to his girlfriend’s mother.
On 10 August 2011, the employee’s girlfriend asked the employee to send the beta keys again, as her mother was unable to find the email containing the beta keys. The employee, instead of forwarding the email of 20 June 2011, obtained a volume licence key (a key which is used to activate a software product on multiple computers) from the employer’s server and provided this to his girlfriend’s mother.
When the email of 10 August 2011 was picked up by internal forensic investigators, the employee denied ever sending out a volume licence key and insisted that he believed that he had sent a beta key to his girlfriend’s mother. Whilst conducting a review of his emails, it was discovered that the employee had, in fact emailed a volume licence key. The employee was subsequently charged with dishonesty and breach of Wesbank’s confidentiality agreements. The chairperson of the disciplinary enquiry found that the employer was unable to prove dishonesty but found the employee to have been grossly negligent and he was dismissed on this basis.
At the Commission for Conciliation, Mediation and Arbitration, the Commissioner found the dismissal to be substantively unfair as the employee had been found guilty and dismissed for gross negligence – something he had not been charged with. In relation to the charges, the Commissioner found that the employer was bound by the choices that it had made at the time that the employee was charged and that the employee could not be found guilty of an offence with which he had not been charged.
The employer approached the Labour Court to review the arbitration award. The Labour Court dismissed the application for review, finding that the employer had not been able to prove dishonesty and, on that basis, the employee’s dismissal was unfair. The employee’s dismissal was found to be substantively unfair and he was awarded 10 months’ remuneration as compensation.
Dissatisfied with this outcome, the employer appealed to the Labour Appeal Court (“the LAC”). The Labour Appeal Court found that the Commissioner and the Labour Court had not considered gross negligence and negligence to be ‘competent verdicts’ in respect of the employee’s misconduct.
The LAC confirmed that disciplinary charges need not be drafted with the precision of a criminal charge sheet and added that Courts and arbitrators should not adopt an approach which is too formalistic or technical.
In considering the misconduct as it related to the disciplinary charges, the test to be used is one of prejudice. The test for prejudice in the circumstances is whether the employee would have conducted their defence differently had they known of the possibility of a ‘competent verdict’ to the charges. In other words, would the employee have conducted his defence differently had he known that even if the employer could not prove dishonesty, he could still be dismissed for gross negligence?
The employee submitted that his evidence would have been led differently had he known that negligence was a competent verdict in the circumstances. He, however, failed to identify what that evidence would have been.
On the facts, the Court found that the employee had failed to exercise the required standard of care which had the potential to cause reputational harm to the employer in that Wesbank could assume that its intellectual property was in safe hands with the employer.
The employee’s denial of negligence, his seniority and the potential damage that his conduct could have caused all contributed to a finding that the employer was justified in finding that it had lost trust in the employee and in the continuation of the employment relationship.
This judgment by the LAC has once again confirmed the understanding set out in Avril Elizabeth that disciplinary processes should not adopt an overly formalistic or legalistic character. Employers should review their disciplinary codes and procedures to adopt less rigid procedures as this would result in expediting disciplinary processes and thus reducing the costs associated with it.
- Specific forms of misconduct in the workplace and the necessity for a disciplinary code
- Disciplinary enquiries: Procedure, rights and obligations of employer and employees
- Intention is everything: The role of intent in employee discipline for dishonesty and/or fraud