Will a dismissal be procedurally unfair where the allegations of misconduct were amended by their employer after notifying the employer of the allegations? In Munnik Basson Dagama Attorneys v CCMA (unreported judgment in case number JR 1153/08, handed down on 3 December 2010), the Labour Court (the Court) considered this issue.
During the disciplinary hearing the employer's representative applied to the chairperson of the hearing for leave to amend the allegations by labelling the four counts of misconduct as "gross negligence". The hearing chairperson allowed the employer to change the allegations, then heard the matter, confirmed that the employee committed the misconduct was committed, as per the amended allegations, eventually dismissing the employee. The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA). The CCMA held that the the dismissal was substantially fair but procedurally unfair and awarded the employee compensation equalling three months' remuneration.
The employer brought an application to the Court to review the Commissioner's award. The main issue before the Court was whether the Commissioner's finding (that the amendment to the allegations of misconduct rendered the dismissal procedurally unfair) was one a reasonable Commissioner could reach.
The Court accepted it as trite law that in civil proceedings, amendments to pleadings and documents can be sought at any stage of the proceedings. It confirmed that a court should exercise its discretion to allow or deny an amendment of pleadings judicially in light of the prevailing facts and circumstances. In most cases, an amendment will be allowed where it may be done without prejudice to the other party. The Court confirmed further that this same principle applies equally to labour matters in that there is no overriding concern that prevents an employer from amending the allegations of misconduct before a finding is made in the disciplinary hearing.
The Court held that the labelling of the allegations of misconduct as "gross negligence" did not in any way add to the complexity or substance of the charges. The Court confirmed that the focus should always be on the factual allegations in the notice and not the way it has been labelled. The Court held that the dismissal of the employee was procedurally fair as:
- The employee was informed of the allegations against her;
- the employee was provided with an ample opportunity to state her case;
- the employee was given opportunity to make representations about the amendment and then allowed to consider her position and to lead any further evidence, but declined to do so.
The Court reviewed and set aside the Commissioner's award. Employers are thus not bound by the allegations of misconduct initially preferred against an employee and may indeed amend these during the disciplinary process. However, cautious employers will ensure that the affected employee is given opportunity to make representations on any prejudice that may result from such amendment. Additional time to further prepare a case in response to the (amended) allegations should cure most prejudice. Employers drafting allegations of misconduct will do well to avoid pigeonholing the misconduct, but rather explain in layman's terms what the employee is alleged to have done and why the employer is unhappy with that conduct.