Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee.
Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing.
There are several reasons for this. To begin with, employers often accuse employees of acts of misconduct which, in fact, cannot be proved.
An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Second, terminology is used and, on occasion, used inappropriately.
For example, acts of misconduct are described as being of a gross nature when the employer does not appreciate what distinguishes gross misconduct from ordinary misconduct.
In this regard it is also not uncommon for an employer to compile an allegation of gross insubordination when the employer cannot distinguish between “gross” and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”.
This frequently leads to disputes that focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations that have been made against him/her so that they are in a position properly to prepare a defence.
If an employee is of the view that the employer has not furnished them with enough information in the charge sheet to prepare a defence, the employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The Commission for Conciliation, Mediation and Arbitration and Labour Court have been required to address many disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court.
In short, Schedule 8 of the Labour Relations Act informs parties that charges should be levelled “in a form and language that employees can reasonably understand”.
Case law supplements this by providing that allegations inform the alleged offender of what s/he is alleged to have done (or not done, as the case may be) where the alleged transgressions took place and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SA Commercial, Catering and Allied Workers Union obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02), the commissioner found the following: “The charges should be specified with sufficient particularity to enable the employee to answer them.
“This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of Correctional Services & others (1999) 20 ILJ 2416 (LC))”.
l Register for a Seta-accredited Conducting Disciplinary Hearings workshop on September 19 and 20 by phoning 011 476 1620, e-mail admin@tonyhealy.co.za or visit www.tonyhealy.co.za.
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