Understanding Competent Verdicts 

Often the most challenging part of the disciplinary process for the employer is to adequately describe the standard or workplace rule that has been contravened by the employee. That is why understanding competent verdicts is essential to a fair and just outcome.

Up until a recent LAC judgment the chair person of a hearing has been somewhat rigidly guided by the
charges on the notice of disciplinary enquiry but often during the course of the hearing it becomes clear
that a workplace rule or standard has been contravened but may not be exactly the rule or standard
that the employee has been asked to answer to or which the chairperson has been asked to consider in
their finding.

While competent verdicts have been permissible in criminal cases for a long time, this recent judgement
has tested and brought about the acceptance competent verdicts to the workplace.

For example, the case in question EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57 the
employee was charged with theft, fraud, dishonesty alternatively unauthorised removal of material,
breach of confidentiality agreements and disregard of the code of ethic but during the course of the
hearing it became evident that the employer could not prove intent but that the employee had in fact
committed the misconduct so he was dismissed for gross negligence.

It often happens that the understanding of the incident/act of misconduct at the time formulating the
charges is not 100% clear or correctly interpreted and even charging in the alternative may not be
adequate to cover all bases as the evidence of both parties has not yet been heard.

It is imperative, however, that the finding on the competent verdict does not significantly prejudice the
employee, in that the employee would have had to have taken a different approach in the preparation
of evidence. Knowing the possibility of a competent verdict, the defence would be the same irrespective.

In order to deal with possible prejudice, the charges need to be clearly described in terms of the rule
that has been breached, that the employee is aware of the date, time and place, and details of the
misdemeanour and that the employee knew or should have reasonably known the workplace rule.

This provides employers room for error by the way of categorisation when formulating charges but still
places the onus on them to prove that there was a workplace rule that was breached.

The labour space provides for social justice and an understanding of competent verdicts ensures that internal disciplinary
hearings need not be overly formalistic.  The approach taken in respect of a competent verdicts allows for just that.

Shani de Kock

For our expert advice and assistance in labour related matters, contact us. We help businesses of all sizes chair disciplinary hearings to ensure fairness and to represent you at conciliation and arbitration proceedings at the CCMA or bargaining councils.