Nicolene Schoeman-Louw | SchoemanLaw Inc    

Category: Commercial Law | Contract Drafting | Employment Law 

Unfortunately, some employees may engage in acts of misconduct from time to time in the workplace. The figures related to the number of disputes referred to by the Commission for Conciliation, Mediation and Arbitration ("CCMA") and bargaining councils confirm the truth of this statement. Misconduct can take many forms, including theft, unauthorised possession, dishonesty, negligence, and absenteeism. 

The increasing dependence on IT infrastructure and digital communication in the workplace has led to a shift in the nature of misconduct. Recent cases have shown that employees have used social networking sites to defame their employers or colleagues, blurring the line between their private lives and their work environment. This highlights how the world of work has evolved and how social networking has played a role in this transformation. 

Misconduct is a common issue that affects all types of businesses, regardless of their size or industry. It can happen at any level of a company and be committed by anyone. However, sometimes, more experienced employees may engage in more sophisticated misconduct.  

Employers can implement disciplinary codes and HR policies to discourage misconduct. Therefore, it is critical to ensure these are in place together with sound agreements to minimise the eventuality. If, however, you need to call an employee to a hearing for misconduct, there are a number of guidelines to consider. 

The Charge Sheet: The Level of Particularity of Charges 

When charging an employee with misconduct, the question arises as to the appropriate level of particularity of the charges. 

Disciplinary charges are not the same as criminal charges. They are brought in respect of offences committed by employees in terms of an agreed employment relationship between the employer and employee.  

The consequence of being found guilty of charges will be the termination of the employee's employment, not imprisonment or payment of a fine, as is the case in criminal proceedings. A disciplinary charge need only be proved on a balance of probabilities. Once again, since the charges are brought with respect to an employment relationship created voluntarily by the two parties, the matter is effectively civil in nature. A criminal charge must be proved beyond a reasonable doubt, and accordingly, a far higher standard of proof is required. 

A disciplinary charge need not be drafted with the precision of a legislative drafter (as it would be in criminal proceedings). 

An employee should, at the very least, be informed of the essence of the allegations against them, in the light of the incidents which gave rise to the proposed disciplinary action, in order for the employee to formulate a defence to or an explanation for the alleged misconduct. Nothing precludes an employee who alleges that the charges against them are vague and imprecise from requesting the employer to provide them with further particulars in respect to those charges. 

Charges are frequently filed as a result of a violation of the employer's disciplinary code. It is therefore important to analyse the level of responsibility that an employer has in following their policies and procedures, especially the disciplinary code and procedure.  

A commissioner or arbitrator who interprets disciplinary charges against an employee in an overly strict manner exposes themselves to further scrutiny by the courts.  

The courts have, on several occasions, held that disciplinary charges are not the same as criminal charges and, accordingly, do not need to be drafted with the same precision. 

Conclusion 

It is, therefore, important to document employment contracts and workplace policies with the necessary dedication to avoid incidents of misconduct and, further, where they occur, to ensure that they can be dealt with expeditiously.  Therefore, carefully drafted contracts and policies are sound investments.  

When needing to call a hearing, it is important to seek professional advice to ensure that the charges are clear and relatable to the standard set by your contract of employment or workplace policy. 

Nicolene Schoeman-Louw | SchoemanLaw Inc    

Specialist Commercial and Contract Law 

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