The CCMA looks at two elements:

Substantial fairness

Procedural fairness

The original approach entailed that a charge sheet is required to contain the charge(s)/allegation(s) that an employee is required to answer. Therefore, for instance, where the element of intent is absent from the charge of fraud, the employee is to be found not guilty (National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC).

However, subsequently, it was held that the above approach was unduly formalistic and the true enquiry was whether or not the dismissal was fair, with reference to the allegations against the employee or the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC).

The aforesaid identification of the true enquiry to be undertaken is based on the principle that disciplinary sanction may be imposed if:

the employee knew or reasonably should have known the workplace rule/standard
the workplace rule/standard had been contravened
no significant prejudice flowed from an incorrect categorisation of the alleged transgression (Woolworths v CCMA (2011) 32 ILJ 2455 (LAC), Mashigo judgment (supra) and SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)

The aforesaid three judgments of the labour appeal court also adopted the approach that all an employee is required to be informed of is that:

on a certain date, time and place
he/she allegedly acted wrongfully or
acted in breach of an applicable workplace standard/rule

In the light of the aforementioned summary of developments that took place, what is the content of a competent verdict within the labour law environment?

In EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), referred to with approval in the SA Police Service judgment (supra), the following was stated in this regard:

an enquiry is not like a criminal trial where guilt is to be proven in respect of the charge the employee faces
the true enquiry is as stated in the Mashigo judgment (supra), namely, a determination as to whether or not the dismissal is fair with regard to the allegations made against the employee or the standard of conduct required from the employee
it is too formalistic to require guilt in respect of the charge (and elements) formulated by an employer
a competent verdict (another charge not mentioned) is therefore permitted if there is no prejudice to the employee – it is not a requirement that the competent verdict is to be mentioned in the charge sheet

it is, however, well-established that the employer cannot ordinarily change the charge or add a new charge after the commencement of the hearing if it is prejudicial to do so (Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA (2020) 31 SALLR 142 (LAC)).

Prejudice will be present if:

the employee would have conducted his or her defence differently or
would have had other defences (see also S v Mwali 1992 (2) SACR 281 (A))

What are the principles governing compensation when a dismissal is only procedurally unfair?

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 31 SALLR 151 (LAC), the following principles were identified:

compensation is the appropriate remedy in terms of s193(2)(d) of the LRA
such compensation must be just and equitable in all circumstances (s194(1) of the LRA)

In Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC), the following was stated in this regard:

actual loss or patrimonial (pecuniary) loss is irrelevant
the award is actually for a solatium as redress
various factors are to be taken into account to determine the extent of the award:
the extent of the deviation from a fair procedure
the employee’s conduct
the employee’s length of service
anxiety and hurt that the employee suffered

(See, further, Alpha Plant v Simmonds [2001] 3 BLLR 361 (LAC); Lorentzen v Sanachem (Pty) Ltd [1998] 8 BLLR 814 (LC))

The appeal court can only interfere with an irregularity misdirection in respect of the awarding of compensation if: