Workplace discipline: Why clarity beats complexity

In South Africa, the Labour Relations Act (LRA), Act 66 of 1995, and its accompanying Code of Good Practice set out clear expectations for employers when initiating disciplinary action. A key requirement is that employees must be informed of allegations against them in a manner they can reasonably understand. This principle was reinforced in Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others, where the Labour Court cautioned against overly formal disciplinary procedures that mimic criminal trials.

Understanding procedural fairness

Procedural fairness, as outlined in the Code, involves:

• A proper investigation into alleged misconduct;
• Giving the employee a reasonable opportunity to respond, with representation;
• A decision made by the employer;
• Written communication of the decision to the employee;
• If dismissal is the outcome, the employee must be informed of the reasons and their right to refer the matter to the CCMA or relevant bargaining council.

The charge sheet: Getting it right

Several landmark cases have shaped the expectations around disciplinary charge sheets:

• Sidumo v Rustenburg Platinum Mines: Charges must be clear enough for the employee to prepare a defence.
• Riekert v CCMA: Emphasised the importance of clarity and specificity.
• National Police Commissioner v Myers: Highlighted that charge sheets need not resemble criminal indictments, but must be understandable. The Court also cautioned against the splitting of charges —i.e., framing multiple charges from a single act of misconduct. This practice can be prejudicial and lead to unfair disciplinary proceedings.
• Khumalo v MEC for Education: Stressed the need for precision in outlining misconduct.

Key considerations for employers

When drafting charges, employers should:

• Avoid overly technical or legalistic language but use clear, simple language that the employee can understand;
• Ensure the charges align with the employee’s contractual obligations, job description, and company policies;
• Avoid splitting charges unnecessarily or using criminal law terminology;
• Focus on fairness and clarity and relevance rather than legal jargon and legal technicalities;
• Ensure the employee understands the nature of the allegations and has sufficient time to prepare an adequate defence.

What if misconduct emerges that wasn’t initially charged?

The EOH Abantu v CCMA case addressed this scenario. The Labour Appeal Court held that while precision in charges is important, a rigid or overly technical approach should be avoided. The key consideration is prejudice—whether the employee would have responded differently had the new charge been included initially.

This means that if the evidence reveals a different misconduct, and the employee is not prejudiced by the change, a finding of guilt on the new charge may still be valid.

Key takeaways for employers

To ensure fairness and avoid unnecessary litigation:

• Clearly communicate charges to employees;
• Ensure charges are specific and understandable;
• Avoid changing or adding charges mid-hearing unless it does not prejudice the employee;
• Focus on substance over form—what matters is whether the employee understands the case against them;
• Remember, categorisation of misconduct is less important than clarity and fairness.

Conclusion

Employers need not be overly legalistic when drafting disciplinary charges. However, care must be taken to ensure that charges are clear, fair, and procedurally sound. The chairperson of the disciplinary hearing must also apply the principle of fairness when recommending sanctions, especially if the misconduct differs from what was initially charged.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.