Drafting a disciplinary charge that “sticks”
One of the “not so pleasant”, but necessary duties and prerogatives of the employer, is the enforcement of discipline.
Sound employee relations require that exercising this prerogative must be done equitably and fairly, in accordance with labour law requirements and must preferably be educational, constructive, and not punitive or vindictive.
This requires that, at least, the guidelines contained in Schedule 8, annexed to the Labour Relations Act (LRA), have to be adhered to when embarking on enforcing discipline in the workplace.
Central to exercising discipline, as a fair labour practice, is the disciplinary charge.
This charge is the “agenda” of the disciplinary proceedings and defines the parameters within which the ultimate disciplinary decisions regarding guilt/innocence and sanction are to be taken.
The guideline in Schedule 8 to the LRA, paragraph 4, requires that the formulation of the charge be preceded by some form of investigation to uncover the facts underpinning the alleged conduct or the incident concerned.
Once the investigation is completed and evidence of the breach of some workplace rule is established, the charge has to be formulated and based on this formulation, the case against the employee eventually stands or falls.
What happens when the charge is wrongly pitched, that is, charging the employee with conduct which cannot be supported by the facts of the case?
The employee then simply has to be found not guilty as charged. Such eventuality brings along implications which impact negatively on employee relations, such as accusations of high-handedness, absence of due care, intimidation, victimisation and even bullying on the part of the employer by subjecting the employee unnecessarily to the trauma of disciplinary proceedings.
Another implication of a wrongfully pitched charge is that the employee may technically well be guilty of an offence, but not the one defined in the charge. For instance, the employee could have been charged with dishonesty, while the facts of the matter rather support a charge of gross negligence. Unless new relevant evidence, supporting the notion of gross negligence, emerges after the employee was charged with dishonesty and the disciplinary case was followed through to the point of being found not guilty, the labour law concept of double jeopardy prohibits charging the employee a second time on the same set of facts, as a means of belatedly aligning the charge with the established facts. Such a second bite at the proverbial cherry could well amount to an unfair labour practice.
How does one then avoid wrongly or unnecessarily charging an employee?
By subjecting your draft charge to the validity test, or commonly referred to as the “acid test”.
What does subjecting the charge to the “acid test” entail? It requires you to follow the following steps:
- Formulate a draft charge with the introductory statement: “It is alleged that you…”, once you have conducted an investigation establishing the facts of the matter.
- Highlight each and every sub-allegation contained in the draft charge and list them separately. Example: Based on a charge that reads as follows: “It is alleged that you, on 12 December 2020, removed the cash amount of R200.00 from the cash drawer entrusted to you without permission and utilised it for private purposes, which conduct is associated with the category very serious offences in the Disciplinary Code”, the sub-allegations would be the following: you / on 12 December 2020 / removed / cash amount / R200.00 / from the cash drawer entrusted to you / without permission / utilising it for private purposes / the association with very serious offences in the disciplinary code in respect of degree of seriousness.
- Ensure that you are able to prove each sub-allegation, at least on a balance of probability and note down the evidence to your disposal supporting it next to each sub-allegation you listed separately.
- Should you find that you do not have sufficient evidence to prove a particular sub-allegation, either remove this sub-allegation from the charge or continue your investigation in order to find the necessary proof.
- Should you fail to find sufficient proof substantiating any or all of the salient components of the draft charge, the charge fails the “acid test”, making it not advisable to proceed with the charge, as formulated.
Only once the formulated charge passes the “acid test” with each sub-allegation (and hence the charge, as a whole), being capable of being proven at least on a balance of probability, would it be ready to be presented to the employee.
What are the benefits of conducting the “acid test” on disciplinary charges?
- It avoids subjecting employees unnecessarily to disciplinary proceedings or exercising discipline in a haphazard way.
- It ensures that a proper investigation precedes the formulation of the charge.
- It eliminates the possibility that the employee be charged with something that cannot be proven.
- It eliminates the eventuality that the employee, so charged, could reasonably and objectively be found not guilty as charged, while only the perception of the degree of seriousness associated with the charge may differ between initiator and decision maker.
- It creates the impression that the employer is committed to enforce discipline in a fair, equitable, even-handed, and consistent way.
- It contributes greatly to the prospect of a positive prognosis on success, should a dispute regarding the procedural and/or substantive fairness of internal disciplinary proceedings be referred to the CCMA or labour courts.
J J (Koos) van der Merwe, Chartered HR Professional registered with the SABPP – May 2021