In the matter, the employer had brought allegations of misconduct against several employees for “having been involved in the appointment and payment of ghost employees over a period of almost two years”. Mr Mothlang was the main character in this matter who utilised the employees login details to the employer’s system where he appointed, and effected payment to, the ghost employees.

The employer dismissed the employees, who referred a dispute to the Commission for Conciliation, Mediation and Arbitration. The undisputed evidence before the commissioner was that:

Mr Mothlang obtained the employees’ login details to the employer’s payroll and human resources system, including their passwords, which he used to effect the fraudulent transactions (i.e. appointment and payment of ghost employees);

Mr Mothlang repeatedly obtained the employees’ passwords, which they updated monthly;

the employees changed their passwords on a monthly basis; and

one of the employees signed a form appointing a ghost employee, which Mr Mothlang had brought to her for processing.

The LAC’s findings

The LAC emphasised that none of the employees explained how Mr Mothlang repeatedly obtained their updated passwords, yet the commissioner concluded that the employer’s case was “highly improbable and not convincing at all” and found their dismissal to be substantively unfair. The Labour Court dismissed the employer’s review application.

The LAC criticised the commissioner and the Labour Court for their unduly narrow and technical approach to the charge sheet and the finding that the employees “were never charged in relation to the condition of their [passwords] but were charged for actual theft”.

The LAC reaffirmed the decriminalized approach to workplace discipline:

• An employer is required to notify the employee of allegations of misconduct in sufficient detail and in a form and language that the employee can reasonably understand to allow the employee to answer such allegations.
• An employer is not required, when formulating charge sheets, to advise the employee of the precise charge required to be answer.
• Disciplinary proceedings are not criminal trials, nor are they intended or required to resemble highly technical civil trials.
• Employers in disciplinary proceedings may not be lawyers and may at times define the nature of the alleged misconduct raised against an employee imprecisely, too narrowly or even erroneously record the legal basis for such misconduct.
• It is not necessary for the employee to be given notice of the precise legal basis for a complaint of misconduct in a highly technical charge sheet.
• The employee need only be informed in the appropriate manner of the allegation of misconduct raised in sufficient detail to enable the employee to understand the complaint and answer to it.

The LAC set the Labour Court’s order aside because it adopted an overtly technical approach and failed consider the employees’ failure to explain how Mr Mothlang repeatedly obtained their updated passwords over a period of almost two years.

The Draft Code echoes the LAC’s judgment and states that a fair procedure is simply one:

• where allegations of misconduct are made available to an employee or explained in sufficient detail to allow the employee to understand them;
• in which an employee is given a reasonable opportunity to respond to the allegations; and
• that is aimed at ensuring genuine dialogue and an opportunity for reflection before a decision is taken.

Workplace disputes are not criminal or technical civil disputes. Workplace discipline ideally should be informal, expeditious and simple. The Labour Relations Act places a purposive premium on the expeditious resolution of disputes. This approach also mitigates unnecessary costs (direct and indirect) that may be incurred by adopting formalistic and time consuming processes.