Disputes often arise as to the level of precision required when drafting disciplinary complaints. Since these are not criminal charges drafted by experienced lawyers, our courts have explained that a certain measure of leniency should be afforded to employers who are required to articulate the acts of misconduct in disciplinary complaints.
A long line of case law on the issue culminated in EOH Abantu (Pty) Ltd v CCMA and Others (2019) 40 ILJ 2477 (LAC) (“EOH”) where the LAC confirmed that courts and arbitrators should not adopt formalistic or technical approaches to disciplinary complaints, and should not place too much emphasis on how the complaint has been described or characterised by the employer. The LAC found that it would normally be sufficient if the complaint sets out enough information for the employee to understand the misconduct they are alleged to have committed.
In the recent Labour Appeal Court (“the LAC”) judgment in Nontobeko Lliona Machi v CHEP SA (Pty) Ltd and Others (DA 22/2023, 19 January 2026), the LAC appears to have gone even further than EOH. The central issue in this matter was whether the arbitrator committed a reviewable irregularity by finding the employee guilty of, and upholding her dismissal for a complaint which was not listed in the list of complaints she had to answer.
Factual Background
Ms Machi was employed by CHEP SA (Pty) Ltd (“CHEP”) as a Senior Human Resources Business Partner. In July 2017, she requested to be excused from attending a company awards event in Cape Town and return to Durban, citing ill health and emotional distress arising from disciplinary action taken against a colleague of hers.
After arriving in Durban during her ordinary working hours, Ms Machi proceeded to chair a disciplinary hearing for another entity, Zala Corporates, and subsequently issued a written outcome in which she described herself as the “HR Director” of that entity, despite not being a director or an employee of Zala Corporates.
Following an investigation, CHEP called Ms Machi to a disciplinary enquiry to answer to the following disciplinary complaints, including:-
- Dishonesty, in that she told her manager that she was unwell in order to avoid the Achievers Awards, while having pre-booked her return flight, demonstrating that she never intended to attend; and
- Gross Misconduct for failing to inform CHEP that she was ‘acting as a Director’ of Zala Corporates, in breach of the Brambles Code of Conduct, which prohibits conflicts of interest, including outside employment.
Ms Machi was found guilty and dismissed. She subsequently referred an unfair dismissal dispute to the CCMA. Noticeably absent from the list of complaints, however, was the fact that Ms Machi had engaged in a blatant act of moonlighting during normal working hours, after misleading the Company about her reason for leaving the event.
At arbitration, the arbitrator found that Ms Machi was not guilty of the complaints raised against her, and that her dismissal was procedurally unfair. Nevertheless, the arbitrator concluded that the dismissal was still substantively fair because of what the arbitrator described as an “unexpressed fourth allegation” – that Ms Machi had destroyed her employer’s trust by claiming to be unwell to excuse herself from a work obligation, while performing work for another entity during company time and misrepresenting her status within that entity.
Ms Machi sought to review and set aside the award in the Labour Court, arguing that the arbitrator had committed a gross irregularity by formulating a new charge mero motu and upholding the dismissal on a basis not advanced in list of complaints. The Labour Court dismissed the review application. Ms Machi, unhappy with the outcome, appealed the matter to the LAC.
The LAC’s Decision
On appeal, the LAC upheld the Labour Court’s judgment and confirmed that no reviewable irregularity had been committed by the arbitrator.
In reaching this conclusion, the LAC reaffirmed that the categorisation or precise formulation of a charge is of less importance than the employee’s knowledge of the factual allegations underlying the misconduct.
Crucially, the LAC rejected the characterisation of the impugned finding as a newly formulated charge and found that the so-called “unexpressed fourth allegation” was not a new or unrelated charge, but rather the true gravamen of the employer’s case arising from the same core conduct. The LAC held that the unexpressed allegation was integral to the employer’s case, observing that:-
“The ‘unexpressed allegation’ was the very heart of the narrative presented by the employer; it was the factual matrix from which the expressed charges sprang.”
While the LAC’s emphasis on substance over form is well established, the LAC’s approach in this case arguably stretches that principle to its limits. Some may argue that the decision is simply wrong, as it strikes at one of the fundamental pillars of procedural fairness, namely audi alteram partem.
An employee is entitled to be provided with the disciplinary complaints they are required to answer. The LAC’s judgment, however, sets an impossible hurdle for an employee to clear – having to assume what other ‘unexpressed’ allegations they may have to respond to at a disciplinary enquiry or, as in this case, at arbitration.
The broader implications of this judgment are worrying, since employers may rely on this judgment to paper over disciplinary complaints or processes which have been bungled, or adopting a shotgun approach to drafting disciplinary complaints on the basis that the employee ‘should be aware of the issues in the matter’.
Given these risks, parties involved in disciplinary or dismissal matters would be well advised to seek specialist legal advice at an early stage.
