Competent verdicts have long been permissible in criminal cases as alternative verdicts, such as where an accused has been charged with murder but is subsequently convicted of culpable homicide. However, in a first for South African labour law, the concept of competent verdicts, where an employee is found guilty of and dismissed for misconduct not on the original charge sheet, has now been tested in the labour courts.

On 15 August, the Labour Appeal Court delivered a judgment that brings competent verdicts into the labour space.  The decision dealt with the dismissal of an IT consultant for distributing the intellectual property of his employer’s client to an acquaintance.

The employee, who distributed a licence key for multiple installations of a software product, was initially charged with theft, fraud and dishonesty but was found guilty of and subsequently dismissed for gross negligence.

The employee then approached the CCMA, claiming that his dismissal was unfair because he had been found guilty of an offence, gross negligence, with which he had not been charged.

The CCMA found that the dismissal was procedurally fair but substantively unfair. One of the main reasons was that the employee had not been charged with the offence of which he had been found guilty.

The employer then approached the Labour Court, which upheld the CCMA’s unfair dismissal finding. Finally, the employer approached the LAC, which ruled in its favour.

The LAC judgment can be read here. It deals extensively with competent verdicts in disciplinary proceedings and provides that an employee may be found guilty of (and subsequently dismissed) for misconduct for which he or she has not been charged. The proviso is that the finding on the competent verdict must not prejudice the employee.

For instance, if an employee might have changed his or her defence had he or she known about the possibility of a competent verdict, this might have been prejudicial. On the other hand, an employee would not be prejudiced if the defence would be the same regardless of the charges.

The crux of the judgment is that where a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed even if the employee has not specifically been charged with that misconduct.

What this judgment says is that competent verdicts are permissible in the labour space. This provides employers with room for error – by way of incorrect categorisation – when formulating charges, and is in line with the accepted notion that internal disciplinary hearings need not be overly formalistic and conducted as criminal trials.