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The drafting of disciplinary charges is often treated as a highly technical exercise. Employers sometimes attempt to reproduce the language and structure of a criminal indictment, while employees may argue that any wording error in a charge automatically invalidates the disciplinary process. Neither approach accurately reflects South African labour law though.

The central question is not whether the employer has drafted a technically perfect charge, but whether the employee has been told, in understandable terms and with sufficient detail, what workplace misconduct is alleged so that the employee has a fair opportunity to respond.

The Enquiry in Context

Rather than being a criminal prosecution, a workplace disciplinary process is intended to determine whether an employee contravened a workplace rule or standard and, if so, what employment consequence should follow.

This distinction has several practical consequences. An employer does not have to prove misconduct beyond reasonable doubt because the applicable standard is proof on a balance of probabilities. The employer also does not need to formulate charges with the precision required in criminal proceedings, establish every element of a statutory crime, or conduct the hearing according to the formal rules of criminal evidence and procedure.

Labels such as “theft”, “fraud”, “assault” and “gross negligence” may be convenient descriptions of workplace misconduct, but they should not obscure the real enquiry. The employer must establish that the employee committed the alleged act or omission, that this contravened a valid and reasonable workplace rule or standard of which the employee was (or reasonably should have been) aware, and that the sanction imposed was fair. These are the considerations identified in the current Code of Good Practice: Dismissal.

The distinction is especially important where the alleged misconduct could also constitute a criminal offence. An employee may be found to have committed workplace misconduct even if no criminal charge is laid, a criminal charge is withdrawn, or the employee is acquitted in criminal proceedings. The two processes serve different purposes and apply different standards of proof.

What the New Code of Good Practice requires

Paragraph 11 of the Code provides that the purpose of a fair procedure is to ensure genuine dialogue and an opportunity for reflection before a decision is made. An employee must receive an adequate and reasonable opportunity to respond to the allegation of misconduct. The investigation or enquiry does not have to be formal, and its nature should be appropriate to the allegation and to the nature and size of the employer.

Ordinarily, an employee should be notified of the allegations, preferably in writing, and be given reasonable time to prepare representations concerning both the misconduct and the appropriate sanction. The employee should also be allowed assistance from a fellow employee or trade union representative and, where reasonably possible, be able to participate in a language with which the employee is comfortable. Most importantly for the drafting of charges, paragraph 11(5) states that the allegations must be made available or explained in sufficient detail to enable the employee to understand them.

The Code therefore speaks of allegations, rather than requiring a criminal-style charge sheet. A properly drafted allegation should ordinarily identify:

• The conduct or omission complained of;
• Approximately when and where it occurred;
• The instruction, rule, policy or standard allegedly contravened; and
• Any material circumstances necessary to understand the employer’s case.

Not every witness, item of evidence or legal conclusion has to be included. However, a statement such as “misconduct”, “dishonesty” or “breach of company policy” without explaining what the employee allegedly did will seldom provide a meaningful opportunity to prepare.

Collective agreements, contracts and binding disciplinary procedures must also be considered. The Code does not alter rights and obligations created under a collective agreement. Where an employer has agreed to a more formal procedure, it may be required to comply with that procedure even though the minimum requirements of the Labour Relations Act (LRA) and the Code are less formal.

Guidance from the Courts

In Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others, the Labour Court (LC) rejected the assumption that a disciplinary enquiry must resemble a criminal trial. The Court explained that the LRA envisages an investigation, notification of the allegations, reasonable time to prepare, an opportunity to respond with assistance, and communication of the employer’s decision. Elaborate charge sheets, technical objections, formal rules of evidence and other features of criminal trials are not ordinarily required. The purpose is dialogue and reflection, followed by access to independent arbitration if the dismissal is disputed.

The Labour Appeal Court (LAC) addressed incorrectly categorised misconduct in EOH Abantu (Pty) Ltd v CCMA and Others. The employee had been charged with offences involving dishonesty, theft and fraud but was ultimately dismissed for gross negligence. The Court held that, although it is preferable to formulate charges precisely, courts and arbitrators should not adopt an unduly formalistic or technical approach. The categorisation or label attached to the misconduct is less important than whether the employee had adequate notice of the conduct alleged and suffered material prejudice. The LAC consequently accepted that an employee may, in appropriate circumstances, be found guilty of a competent or related form of misconduct even where that precise label did not appear in the notice. The controlling question is whether the employee knew the factual case that had to be answered and whether the defence would materially have been different had the alternative categorisation been used from the outset.

More recently, in Arunachellam v Woolworths (Pty) Ltd and Others, the LC again emphasised that the employee must be informed of the essence of the allegations. This reinforces the principle that substance, intelligibility and the absence of prejudice matter more than technical perfection.

Correcting an Incorrectly Drafted Charge

 An incorrectly drafted allegation should not simply be ignored. The safest approach is to correct it as soon as the problem is identified.

If the error concerns a date, location, policy reference or legal label, the employer should explain the correction, record the amendment and ask whether the employee requires additional time to prepare. A reasonable adjournment will often remove any potential prejudice. If the amendment, however, does not present any material prejudice for the employee, there is no reason why the hearing should not continue immediately.

If the evidence reveals a related form of misconduct arising from the same known facts, the chairperson may consider a competent finding, but only where the employee understood the factual complaint and had a fair opportunity to answer it. The employer should not use this principle to secure a finding on entirely new conduct that emerged unexpectedly during the hearing.

Where the proposed amendment introduces a materially different incident, a new factual basis or an allegation requiring a substantially different defence, the hearing should ordinarily be adjourned and an amended notice issued. In serious cases, it may be preferable to withdraw the defective allegation and recommence the process. An employee must never be ambushed.

Ultimately, an error in wording does not automatically invalidate a disciplinary process. The decisive issue is prejudice: Did the defect prevent the employee from understanding the allegation, preparing a defence or making meaningful representations? Clear factual allegations, reasonable preparation time and a genuine opportunity to respond remain the best protection against both procedural unfairness and unnecessary technical disputes.