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Case law: Two cases showing why you must classify misconduct PROPERLY

by , 09 October 2015
The last thing you want is to lose your case at the Commission for Conciliation, Mediation and Arbitration (CCMA), all because you didn't classify misconduct properly.

You must clearly describe who did what, when, how and why as if you were telling a story to someone and, in a language that your employee will understand.

It's absolutely vital that you do so.

Having said that, here are three cases showing why it's so important to classify misconduct correctly:

Case#1: Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC)
A senior employee was found guilty of fraud, but she wasn't charged with fraud nor was she guilty of fraud.
The accusations were for her using the company's credit card for personal use.
The Court criticised the Chairperson for finding her guilty of fraud even though she wasn't charged with fraud.
The employee was still dismissed though, but the employer was very lucky because the accusations weren't correct.
So remember to describe your allegations in a factually correct way and make sure the Chairperson doesn't go off on a tangent when making a finding.

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Case#2:  Police and Prisons Civil Rights Unions v Minister of Correctional Services & others (1999) 20 ILJ 2416 (LC)
In this case, there were 44 employees who had 15 charges laid against each of them.
The union argued that the charges were extremely vague and so the employees couldn't prepare for the hearing.
The Court found that the charge sheet was, in fact, vague and ambiguous.
The employer argued that the standard for a disciplinary charge sheet isn't the same as for a criminal trial. The court agreed with this, but then said that giving the facts about the allegations for the accused, so that he knows what case to meet, is very important. In other words, the information in the fact sheet must be enough so the accused can adequately prepare. 
So, you should make sure that in a disciplinary hearing involving more than one employee, you must deal with the allegations for EACH employee SEPERATELY.  Also, give each employee a notification with the allegations specific to him and make sure to state when and where the alleged incidents took place.
Those are two cases that stress the importance of classifying misconduct correctly.
To find out another important case from which to learn from, subscribe to the loose leaf service advertised below.

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