It can be persuasively argued that the earlier authority in an unreported judgment of Pillay J in Bissoon v Lever Ponds (Pty) Ltd [2003] JOL 11055 (LC) has been overturned by Van Niekerk J in  Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC).

The LC refused the employer’s application to review and set aside a reinstatement award.  It is  disturbing that once again some LC judges continue to view disciplinary issues as penal issues and use language more akin to criminal proceedings.  Treating discipline in a penal manner loses sight of management’s legitimate function of protection, not punishment.  So the judgment unfortunately reads:

Disciplinary charges do not have to be drafted with the particularity of a criminal indictment.  As the Labour Court in Bissoon stated, a charge must give an employee “particularity sufficient to put [him] to his defence”.  This information usually includes the name of the offense, its date and approximate time, the venue at which it took place and a brief description of the facts underlying the charge’ [para 38].

Refer also to:

Absa Bank Ltd v Ngwane NO (D1149/14) [2016] ZALCD 21 (11 October 2016) per B Whitcher J.

Excerpt without footnotes

[38]     Disciplinary charges do not have to be drafted with the particularity of a criminal indictment. As the Labour Court in Bissoon stated, a charge must give an employee “particularity sufficient to put [him] to his defence[1].  This information usually includes the name of the offense, its date and approximate time, the venue at which it took place and a brief description of the facts underlying the charge.  Having said that, an employer cannot dismiss an employee for breaching a particular rule and then defend the fairness of that dismissal at the CCMA by showing that the employee contravened another rule altogether.  The relative informality of disciplinary hearing charges does not cancel the requirement that charges should denote something specific and semantically stable.  In this case, ABSA, a sophisticated employer, took some time to settle on what exactly it was unhappy with the employee for having done.  The final charge explained Chetty’s rudeness and unapproachability as consisting of his aggressive and insubordinate throwing of the phone into Canham’s bin. [Emphasis added]

[1] Bissoon v Lever Ponds (Pty) Ltd & another (2003) 12 LC 1.8.1