Munnik Basson Dagama Attorneys v Commission for Conciliation, Mediation and Arbitration and Others: JR1153/08
In this matter the CCMA commissioner awarded the employee with three months salary for a procedurally unfair dismissal.
The charges against the employee for the disciplinary hearing were;
1. failed to activate the letters for ASC WW VISA 2 (498) and ASC Homechoice (499);
2. failed to correct the PTP due date on a Metropolitan PTP letter;
3. failed to approve the test data letter samples provided by Laser Facilities facility proofs on the 7th and 8th August 2007;
4. failed to identify and rectify the errors in the Botswana letterhead.”
During the second day of the disciplinary hearing the employer’s representative request the chairman to amend the charge sheet by categorising the four counts of misconduct as gross negligence. Her motivation for the request were that an error had occur with the preparation of the chargesheet and that the charges are not fully described as gross negligence.
The employee object to the request for the amendment. The chairman granted the amendmend since the four charges were for failure to perform certain tasks. The chairman further offered both parties adjournment to prepare additional evidence should it be necessary due to the labelling of the charges as gross negligence. Both parties elected not to adjourn the proceedings and the employee were eventually found guilty on the four charges and dismissed.
The employee referred the matter to the CCMA. After the evidence were heard the commissioner found that the dismissal was substatively fair but procedurally unfair in that the chargesheet was amended during the disciplinary hearing.
The decision of the Labour Court judge is that in civil proceedings as well as labour matters it is allowed to amend the charge sheet before a finding is made. He further agrees with another judge that disciplinary proceedings may be ”more flexible, less onerous” as small employers are often not able to follow elaborate pre-dismissal procedures.
It were also considered by the judge that the chairman was impartial and that the employee was given the oppurtunity to adjourn the hearing to prepare new evidence for the amended charge sheet.
The arbitration award was set aside and replaced with an order that the dismissal was procedurally fair.
