Given this overlap, employers often draft charge sheets to categorise the misconduct as “theft” or “fraud” and in doing so, utilise phrases such as “unlawful conduct”, in an attempt to amplify and/or highlight the seriousness of the misconduct or to justify dismissal as an appropriate sanction.
The landmark decision in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others  9 BLLR 833 (LC) affirmed the approach that for purposes of disciplinary enquiries, there is no place for legalistic procedures that incorporate all of the accoutrements of a criminal trial, including technical and complex “charge sheets”.
Notwithstanding this decision, many employers opt instead to continue with technically worded charge sheets so as to meet the perceived test of compliance in the forums that all too often follow.
This approach, however, ushers in a mechanical test of legal interpretation, which involves a painstaking dissection of each element of the charge and its legal label, hoping to reveal the absence of an essential element thereof.
For example, ‘Fraud’ as a legal concept, involves an intentional misrepresentation, that has the effect of prejudicing another or has the potential to prejudice another. It therefore follows that the absence of ‘intention’ for example, will result in the charge not being sustained.
In the recent decision of Kidrogen (Pty) Ltd v CCMA & others (Case no: C 814/2016, 31 July 2018), three newly appointed executives received payments that were not due to them and for which there was no Board approval. They were as such each charged with gross dishonesty and dismissed.
At the CCMA, the Commissioner found that by receiving monies to which they were not entitled and failing to ensure board approval for the payments, the executives had demonstrated incompetence and negligence.
The Commissioner went on to conclude, however, that because the Executives had not made the calculations or prepared the payments, which they had later received, they could not have been dishonest because dishonesty (in his view) involved deceitful intent. As such, their dismissals were found to be substantively unfair.
On review, the Labour Court rejected the Commissioner’s view that “dishonest” conduct (and, by implication, other forms of misconduct) for purposes of employment law, requires proof of the same elements as in criminal law – that is, deceitful intent.
Dishonesty in employment law is an aspect of the breach of the employee’s duty of good faith towards the employer and is measured against the standard of conduct that could reasonably have been expected of an employee acting in good faith.
In the present case, the Labour Court found that the executives should have foreseen the possibility that accepting the payments in question would be contrary to their contracts of employment and that they could have avoided those consequences simply by seeking clarification from the Board.
The Commissioners decision was therefore set aside and this is consistent with the view that employment law merely requires proof on a balance of probabilities and that there will be no room for technical or legalistic approaches.
To avoid complicated disciplinary proceedings and unnecessary litigation, employers should avoid using criminal law terminology (unless this had been checked by a legal professional) when drafting charge sheets.
Focus should ideally be placed instead on the employee’s contractual obligations as contained in either their contract of employment, disciplinary code and procedure or a work policy. To this end, such contracts, codes and policies must also be plainly drafted.