Patrick Deale - Splitting Charges
2018-07-12
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 “Chargesâ€. 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 chargesâ€.
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 –
-
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 Negligenceâ€. 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 basesâ€. 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 “Prosecutorâ€.
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 – 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 – it could make it less likely.
*Specialised Belting & Hose (Pty) Ltd v Sello NO & others (LC case NO JR3136/05, judgment 6 February 2009)
Offices in KZN and Johannesburg
C: 083 375 8771
E: patrick@deale.co.za
www.deale.co.za