EMPLOYERS BEWARE! EXERCISE CAUTION WHEN DRAFTING DISCIPLINARY CHARGES – KAREN FULTON & EVA MUDELY

Monday, February 18, 2008
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Disciplinary charges must be drafted with great caution – a lesson that emerges from a recent Labour Appeal Court decision in Edcon Ltd v P C Reddy & Others (Case No. DA4/06).
 
The employee was entitled to a company vehicle. In accordance with the company’s car policy, employees were required to:
 
·         Report any accident involving the company vehicle to the police within 24 hours;
·         Obtain a case number;
·         Report the accident to his/her employer and the relevant insurance company;
·         Complete and sign an internal accident claim form;
·         Refrain from repairing the company vehicle without the approval of the company’s insurers.
 
In June 2003, the employee’s son had an accident in the company car. She did not comply with any of the requirements in the company’s car policy. Instead, her husband repaired the vehicle at his own cost.
 
Six months later the company found out about the accident. Confronted, the employee initially denied that the vehicle had been involved in an accident. She eventually admitted to the incident but was still untruthful as to where it occurred and under what circumstances. During a subsequent internal investigation she came clean, whereupon she was suspended and charged with dishonesty that resulted in a breach of trust in that she failed to report the accident to her employer. She pleaded guilty and was dismissed.
 
Note that the element of breach of trust relied upon by the company was solely in relation to the employee failing to report the accident. Significantly, the employer failed to rely on the employee’s lies after the accident had been discovered to further substantiate its case of a breach of trust.
 
The employee challenged her dismissal in the CCMA on the harshness of the dismissal sanction. Given 17 years of service and that she was two years away from retirement, the commissioner found that dismissal was too harsh a sanction and therefore substantively unfair. He ordered her reinstatement with no entitlement to arrear salary. He ruled that the employee’s misconduct was not so gross that the long-standing trust relationship between the employee and the employer had been destroyed.
 
The employer took the commissioner’s award on review to the Labour Court. The judge dismissed the application, finding that the employment relationship had not broken down.
 
The matter then went on appeal to the Labour Appeal Court. The Labour Appeal Court that the allegation against the employee was “failure to be honest” – but only in the context of her failure to report the accident to her employer. In the appeal, the company sought to extend the element of dishonesty to the employee’s untruthful accounts of the accident. However, the Labour Appeal Court found that the employee’s dishonesty during the investigation process should have been specifically alleged in the disciplinary charge-sheet to enable the employee to appreciate the real nature of the charge against her.
 
The decision can be criticised for its formalistic approach to the drafting of disciplinary charges, but it highlights the importance of drafting disciplinary charges with care. Thus:
 

Avoid following standard disciplinary charge-sheet precedents;
Clearly and concisely set out the facts to enable the employee to properly prepare for the enquiry; and
Unless an employee’s misconduct pertains to separate incidents that require different evidence, do not split the charges into separate disciplinary offences.

Karen Fulton is a director and Eva Mudely is an associate of Bowman Gilfillan.