Patrick Deale, Labour lawyer & mediator

Do multiple charges arising from a single act of misconduct make dismissal more likely? Workplace disciplinary enquiries have morphed into processes which mimic criminal trials. It starts with the choice of language. “Alleged Misconduct” has become “Charges”. And for extra gravity, Charges add “Counts” as sub-charges flowing from the primary Charge with criminal phrases like” to wit…” thrown in. The Counts are
referred to as the practice of “splitting charges”.

For example: The employer alleges that a senior executive sent a confidential document to a fellow executive to assist him with his preparations for a disciplinary enquiry. The employer considers this to be an act of misconduct worthy of dismissal because the employee was not authorised to send the document.

The Notice of Enquiry attaches a “Charge” describing the act of misconduct. Then it adds “Counts” as sub-species of misconduct arising from this single act of alleged misconduct. The “Charge Sheet” may read thus â€"

• Charge 1: Gross Misconduct: Gross Insubordination or alternatively refusal or failure to carry out a lawful and reasonable instruction.
• Count 1: Direct challenge to the authority of management;
• Count 2: Breach of your contract of employment
• Count 3: Failure to act with the due diligence of an executive in your position.
• Count 4: Causing prejudice to the organisation

It would have been sufficient to describe the allegation simply as “Gross Misconduct, alternatively, Gross Negligence”. The employee could face dismissal on this simplified version if the enquiry found sufficient evidence to make a finding of guilt on the probabilities.

No doubt the purpose of the over-elaboration is to “cover all bases”. It could also be to create the impression that the alleged act of misconduct is more damning than meets the eye. This approach could have the reverse effect and back-fire on the overzealous “Prosecutor”.

There’s the risk that the splitting of charges could appear as if the employer is “… throwing the book at the employee” as the Labour Court has described it*. This detracts from the merits of the primary charge. A further problem is that the employer would have to prove each of the elements of the split charges to make them stick.

TIP: Employers should confine the description of the misconduct to an act defined in its Code of Conduct â€" or to an act which is generally accepted as misconduct if the act is not specifically referred to in the Code. Over-elaboration will not make dismissal more likely â€" it could make it less likely. 

*Specialised Belting & Hose (Pty) Ltd v Sello NO & others (LC case NO JR3136/05, judgment 6 February 2009)
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