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Labelling misconduct – a source of clarity or confusion

Reading Time 3 minute read


In the workplace there is a temptation to label alleged misconduct, either because we consider doing so makes the misconduct appear more serious, or we consider it necessary to do so as part of a formal disciplinary process. 

Contrary to that instinct, the Labour Appeal Court recently confirmed the principle that employers do not have to and should avoid seeking to label or compartmentalise the misconduct they are charging an employee with, such as assault or theft. Rather, it is best to simply describe the conduct which is being complained of and explain why it constitutes misconduct. 

In the case of Engen Petroleum (Pty) Ltd v CEPPWAWU and others an employee was charged with assault. The employee pleaded not guilty to the charge of assault. 

The Labour Appeal Court found that the plea of not guilty was based on the employee’s understanding from a layman’s perspective of what assault entailed. In this case the Court concluded that it was clear that in aggressively pulling and grabbing another employee by their shirt the employee was guilty of assault in the legal sense of the term ‘assault’. However, in pleading not guilty to the charge of assault, the employee did not appreciate that the legal definition of assault extends beyond physical injurious conduct and includes the mere threat of physical harm. 

The employee admitted to pulling or grabbing another employee by their shirt but was of the view that that did not constitute assault because he did not hit or attempt to hit the other employee. By aggressively pulling or grabbing another employee by their shirt, the Court concluded, regardless of the label which is given to the employee’s actions, it was manifestly clear that the employee engaged in inappropriate and unacceptable conduct in the workplace. 

The Labour Appeal Court then affirmed the position previously taken by the Labour Appeal Court that: 

It is not proper for employers in a labour relations environment to always label their action or even the charge they prefer against an employee for misconduct. There is simply no need to try to label or compartmentalise a decision or for that matter a misconduct charge. All that needs to be done is for the employer to set out the facts and explain the complaint or the issue that arises from the facts which will be the subject to the enquiry or is the basis of the decision it has made.”

It may have been better for the employer to simply charge the employee with misconduct in that the employee engaged in inappropriate and unacceptable conduct in the workplace when he aggressively pulled or grabbed employee “X” by their shirt. The employee would then, probably, have admitted to this conduct, and the only question would have been whether there were any mitigating factors that should be considered in determining what the appropriate sanction should be. 

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