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The outcome of this lawsuit shows the importance of classifying misconduct correctly

by , 05 February 2014
Can you believe that a simple mistake failing to classify misconduct correctly could be the reason you lose your case at the CCMA? Make sure this doesn't happen to you. Continue reading to discover a case that shows the importance of classifying misconduct correctly.

You need to draft allegations properly when you need to hold a disciplinary hearing.

If you don't, your employee could take you to the CCMA for unfair dismissal. And you'll probably lose your case.

Not convinced?

Let's take a look at a case that highlight why this is important.

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Case law shows why it's important to classify misconduct correctly:

The Labour Law for Managers Loose Leaf Service explains that in Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), a senior employee was found guilty of fraud in disciplinary proceedings when she hadn't been charged with fraud nor was she guilty of fraud.

The allegation of wrongdoing was related to unauthorised use of the company's credit card for personal expenses.

The chairperson was criticised by the Court for making a finding of fraud when that wasn't what an employee was charged with and her conduct didn't amount to fraud.

BUT, the Court found the employee's conduct was unethical and dismissal was justified.

The Loose Leaf Service says the fact that the employee was aware of the accusations against her were (i.e. that they related to her unauthorised use of the company credit card) was sufficient enough, even though the legal categorisation of the offence was incorrect.

An employer was fortunate in this case.

He got away with making an incorrect categorisation in the finding because he worded the allegations correctly.

What you can learn about misconduct from this case?

  • You must describe the allegations correctly and stick to the facts.
  • Ensure the Chairperson doesn't wander off track when making a finding.

While the employer in this case was lucky to get away with classifying misconduct incorrectly, you might be not so lucky. So ALWAYS make sure you classify misconduct correctly and describe the allegations correctly.

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