South Africa: What's In A Name? When Is It Fair To Change The Wording Of A Charge During Disciplinary Proceedings?

Last Updated: 12 December 2011
Article by Regina da Silva

Most Read Contributor in South Africa, September 2018

Nothing prevents an employer from amending a disciplinary charge before a finding is made provided that the amendment does not add to the complexity or substance of the charges, for example. when the amendment relates to the categorisation or "label" of the charge, and an opportunity is afforded to an employee to address the proposed amendment.

This was confirmed in the recent case of Munnik Basson Dagama Attorneys v CCMA & Others (2011) 32 ILJ 1169 (LC), where the Labour Court reviewed and set aside the CCMA's finding that the employer's amendment of the charge sheet rendered the employee's dismissal procedurally unfair.

In this case, the employee, who was employed as a Letter Administrator, was charged with misconduct relating to her failure to perform certain tasks. A disciplinary enquiry proceeded over the course of some three days. At the commencement of the second day of the enquiry, the employer applied to amend the charge sheet by categorising the accounts of alleged misconduct as "gross negligence". This was to be effected by inserting the phrase: "You are charged with gross negligence in that you...". The employee objected to the proposed amendment.

The chairperson, however, permitted the amendment on the basis that previous evidence had been led dealing with the employee's alleged failure to perform certain tasks, and the evidence would probably not have differed, had her alleged failures originally been labelled as "gross negligence". In addition, the chairperson offered both parties the opportunity to adjourn the enquiry to consider their position, and if necessary, to present any further evidence that may have become relevant due to the labelling of the charges as "gross negligence". Given that both parties had elected not to adjourn, the enquiry proceeded and further evidence was then presented to the chairperson. At the conclusion of the enquiry, the employee was found guilty of misconduct and thereafter dismissed.

The employee referred an unfair dismissal dispute to the CCMA in terms of which she alleged that her dismissal had been both procedurally and substantively unfair. The Commissioner ultimately found that the employee's dismissal was substantively fair but that the amendment of the charges after evidence was led rendered the disciplinary enquiry procedurally defective. The employee was awarded 3 (three) months' salary as compensation. The Commissioner also remarked that the actions of the Chairperson seem to confirm the employee's submission that the chairperson was not impartial.

The employer brought a review application to review and set aside the Commissioner's finding that the employee's dismissal was procedurally unfair. The employee also belatedly brought a counter-review application, supported by an application for condonation, to review and set aside the Commissioner's finding that her dismissal had been substantively fair.

The counter-review application was determined before the review application. The Labour Court did not grant condonation to the employee and, accordingly, her review application was dismissed, with costs.

Some months later, the Labour Court considered the review application of the employer. With reference to the rules for the amendment of pleadings and documents in civil proceedings, the Court confirmed that these principles apply equally in labour matters. In considering the specific amendment, the court held that the amendment was nothing more than categorising the charges as "gross negligence".

The Court confirmed that the labelling of particular charges of misconduct as "gross negligence" did not, in any way, add to the complexity or substance of the charges. The focus must always be in the factual allegations in the charge sheet and not in their categorisation. It is important to note that the alleged factual conduct by the employee, that is, the particular allegations of the employee's failure to perform her duties, was not amended by the employer in any way.

The Court then also considered the procedure followed by the chairperson in allowing the amendment: he afforded both parties an opportunity to address him on the proposed amendment, allowed them to adjourn to consider their position and to present further evidence, if they deemed it necessary. Nothing prevented the employer from amending the charge sheet in these circumstances. The Court, however, commented that the position would have been different if the chairperson did not allow the parties to make representations or to lead further evidence.

The Court found that the Commissioner's finding that the amendment to a charge sheet caused procedural fairness, suggested that the Commissioner misunderstood the test for procedural fairness in the disciplinary hearing. This amounted to a material error of law which constituted a reviewable irregularity and that the Commissioner had exceeded his powers. In addition, the Court found that no reasonable Commissioner could have found that the amendment to the charge sheet had been procedurally unfair.

Having regard to the case of Avril Elizabeth Homes for Mentally Handicapped v CCMA & Others (2006) 27 ILJ 16644 (LC), the Court held that the employee's dismissal had been procedurally fair: she was informed of the charges against her, had been provided with ample opportunity to state her case, and the matter was heard by an impartial chairperson. In addition, the employee was given an opportunity to make representations about the amendment, allowed an opportunity to consider her position and to lead further evidence in that regard. The Commissioner had clearly misconstrued the legal standard for procedural fairness, and in so doing, he committed a gross irregularity in the arbitration proceedings.

It was the Court's view that the Commissioner's comment that the actions of the Chairperson in amending the charge sheet seemed to confirm that he was not impartial, indicated that the Commissioner had failed to properly apply his mind to the issue of procedural fairness.

In the circumstances, the Court confirmed that the Commissioner's finding was reviewable and that the dismissal of the employee was procedurally fair.

This decision confirms that a charge sheet may be amended during disciplinary proceedings, if:

  1. the amendment does not affect the severity and seriousness of the charge(s);
  2. the amendment only relates to the labelling or "categorisation" of the charge(s) and not the alleged factual conduct by the employee;
  3. the parties are afforded the opportunity to make representations regarding the proposed amendment to the chairperson of the disciplinary enquiry (i.e. before the chairperson allows the amendment); and
  4. the parties are afforded the opportunity to lead further evidence on the allegation(s), after the amendment has been allowed.

ENS acted for the employer in the review and counter-review applications. The employer was successful in both instances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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