Lavery Modise and Lebogang Kutumela
Lavery Modise and Lebogang Kutumela
One of the fundamental aspects of a procedurally fair disciplinary inquiry is that an employer must advise an employee of the charges against him.
The charges against an employee must be clear and in a language that the employee can reasonably understand.
Though the charges against an employee need not be drawn up with the precision of a criminal charge, the charges must be clearly specified and not too widely formulated.
An employee cannot be found guilty of an offence for which he has not been charged. However, it sometimes happens that an employee is charged with a particular offence, but during the disciplinary inquiry, the employer proves that the employee has committed a different or more serious offence.
This leaves the employer and employee in a difficult predicament in that the employee is not given an opportunity to defend himself in respect of the new or more serious offence.
The Labour Appeal Court recently confirmed in the matter of Edcon Ltd versus Pillemer that an employer has a duty to advise an employee of the real nature of the charges against him.
In the Edcon case, the employee's son crashed a car belonging to the company. The company rules required the employee to immediately report any accidents. The employee did not report the accident but instead got the car fixed herself.
The company eventually came to know of the accident but when confronted, the employee denied that the accident had occurred.
The company charged the employee with failing to report an accident, which resulted in a breach of the trust relationship between the parties. In justifying the dismissal, the company relied on the fact that the employee lied when confronted about the accident.
Where it becomes evident at a disciplinary inquiry that an employee has committed a different or more serious offence from the initial charge, the disciplinary inquiry should be adjourned so as to enable the employer to draft fresh charges and allow the employee sufficient time to prepare a defence in respect of the new or more serious offence.
lModise is a director, and Lebogang Kutumela, an associate, at Routledge Modise
Rules of discipline
Lavery Modise and Lebogang Kutumela
Lavery Modise and Lebogang Kutumela
One of the fundamental aspects of a procedurally fair disciplinary inquiry is that an employer must advise an employee of the charges against him.
The charges against an employee must be clear and in a language that the employee can reasonably understand.
Though the charges against an employee need not be drawn up with the precision of a criminal charge, the charges must be clearly specified and not too widely formulated.
An employee cannot be found guilty of an offence for which he has not been charged. However, it sometimes happens that an employee is charged with a particular offence, but during the disciplinary inquiry, the employer proves that the employee has committed a different or more serious offence.
This leaves the employer and employee in a difficult predicament in that the employee is not given an opportunity to defend himself in respect of the new or more serious offence.
The Labour Appeal Court recently confirmed in the matter of Edcon Ltd versus Pillemer that an employer has a duty to advise an employee of the real nature of the charges against him.
In the Edcon case, the employee's son crashed a car belonging to the company. The company rules required the employee to immediately report any accidents. The employee did not report the accident but instead got the car fixed herself.
The company eventually came to know of the accident but when confronted, the employee denied that the accident had occurred.
The company charged the employee with failing to report an accident, which resulted in a breach of the trust relationship between the parties. In justifying the dismissal, the company relied on the fact that the employee lied when confronted about the accident.
Where it becomes evident at a disciplinary inquiry that an employee has committed a different or more serious offence from the initial charge, the disciplinary inquiry should be adjourned so as to enable the employer to draft fresh charges and allow the employee sufficient time to prepare a defence in respect of the new or more serious offence.
lModise is a director, and Lebogang Kutumela, an associate, at Routledge Modise