The focus of any disciplinary enquiry must be the charges brought against the employee. In fairness to an employee, he or she must understand the allegations to properly have an opportunity to respond to them. The Labour Appeal Court (“the LAC”) in the recent case of Machi v Chep SA (Pty) Ltd and Others (DA22/2023) [2026] ZALAC considered the situation where inelegant or clumsily drafted charges are brought against an employee and what a CCMA Commissioner should focus on when considering an employee’s misconduct in such cases.
The facts
The appellant, Ms Nontobeko Machi (“Ms Machi”), was a Senior Human Resources Business Partner at Chep SA (Pty) Ltd (“Chep”) based in Durban. She was required as part of her responsibilities to attend a Chep awards event in Cape Town on 6 July 2017. On the morning of 6 July 2017, Ms Machi informed her manager that she was unwell and requested permission to return to Durban early, thereby missing the awards event. She also told her manager that she was also still recovering from the shock of the suspension of a colleague for alleged fraud. Against this background, her manager allowed her to return to Durban that morning.
Her plane landed in Durban during business hours. However, she did not go home. Instead, she attended at the premises of Zala Corporates, a company unrelated to her employer. There she proceeded to chair a disciplinary hearing for Zala Corporates. When she issued her finding in that matter, she described herself as Zala Corporates’ Human Resources Director. Not only was this untrue but it would have constituted a serious conflict of interest had it been true.
When this deception and other misconduct came to light Chep instituted disciplinary proceedings against Ms Machi. She was charged with three separate instances of misconduct. The first charge related to gross negligence in the recruitment process of a Mr Malepe. This charge is not relevant to the current issue.
The second charge was dishonesty, in that she told her manager that she was unwell to avoid the Achievers Awards, while having pre-booked her return flight, demonstrating that she never intended to attend.
The third charge was gross misconduct for failing to inform CHEP that she was ‘acting as a Director’ of Zala Corporates, in breach of the group code of conduct, which prohibits conflicts of interest, including outside employment.
Ms Machi was found guilty of all three charges and dismissed.
The CCMA Award
The Commissioner in her award found that Ms Machi’s dismissal was procedurally unfair but substantively fair. Interestingly, the Commissioner found that Ms Machi was not guilty of any of the three charges of misconduct based on their exact formulations. However, she found her guilty of an “unexpressed fourth allegation” of misconduct.
On a technical approach, the Commissioner found that no dishonesty in how the flight was booked. Therefore, Chep did not prove the second charge. Furthermore, Ms Machi was never a real director of Zala Corporates and accordingly could not be found guilty of charge three.
However, the Commissioner went beyond the technical formulation of the charges and considered Ms Machi’s actual misconduct. Shed lied to her line manager to avoid the awards event so that she could chair a disciplinary hearing for another company during her normal working hours at Chep. She found her guilty of this misconduct and held that her dismissal was substantively fair.
The review
Unhappy with this finding, Ms Machi sought to review the arbitration award in the Labour Court. She contended, amongst other things, that the Commissioner had committed a gross irregularity by creating a new charge and then finding Ms Machi guilty of that new charge.
The Labour Court dismissed the review application on the basis that the allegation of which she was found guilty by the Commissioner was part of the charges levelled against her. As such, she knew the case she was expected to meet. The Labour Court held that properly understood, there was in fact no “creation” of a new charge. Rather, the so-called “unexpressed fourth charge” was contained in the existing charges of misconduct.
The LAC
Ms Machi then brought an appeal in the LAC. There she maintained that the Commissioner, after correctly acquitting her of the formal charges, could not then formulate a new, different charge to justify the dismissal.
Chep’s case before the LAC was simple: the Commissioner did not invent a new charge, but rather correctly identified the true, core misconduct that was always embedded in the evidence and the narrative of the case against Ms Machi. The central issue was Ms Machi’s abuse of trust, claiming to be unwell to be released from a work function, and then immediately performing work for a third-party during company time.
Chep relied heavily on the LAC’s decision in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57, which held that a formalistic approach to charges should be avoided. What is important is that an employee knows what he or she is expected to defend him or herself against, rather than the employer’s formal characterisations of the misconduct.
The LAC agreed with Chep’s arguments on appeal. The LAC contextualised the ‘unexpressed fourth allegation’. It found that this was not a new or alien concept introduced by the Commissioner. Rather, it “was a succinct and accurate label for the conduct that formed the gravamen of the employer’s case from the outset”. The LAC found that the charges, although badly drafted, were part of a single narrative of the events of 6 July 2017. Ms Machi’s dishonesty about her illness (charge 2) and the conflict of interest through a purported directorship (charge 3) were two facets of the same core conduct. The fact that she chaired a hearing for Zala after being released on grounds of illness, was the bridge between the two charges.
The LAC reiterated that the focus must be on the employee’s knowledge of the substance of the allegation, and not its legal label.
In dealing with the issue of sanction, the LAC considered that Ms Machi held a senior and sensitive position in the HR department. She was a custodian of company policy, ethics, and trust. The Court found that her conduct of using company time under the guise of illness to perform work for a third party, while holding herself out as a director of that entity, demonstrated a profound lack of judgment and integrity. This is precisely the kind of conduct that irreparably damages the trust relationship.
Her appeal was dismissed.
Conclusion
This judgment by the LAC is a welcome confirmation that an overly formalistic approach to disciplinary charges is inappropriate.
It is important to accurately formulate disciplinary charges, so that the nature of the misconduct is clearly conveyed. Notwithstanding, CCMA arbitrators cannot adopt too formalistic or technical an approach when considering disciplinary charges. It should not be fatal to an employer’s case if charges are inelegantly drafted. A Commissioner must still consider whether the employee understood the substance of the charge and whether the employee had a proper opportunity to respond to the allegations.
This judgement emphasises the need for a practical, common-sense approach to disciplinary proceedings and a move away from an overly formalistic approach. It would certainly not be in the interests of workplace justice to have employees escape the consequences of their misconduct because an unsophisticated employer did not correctly formulate disciplinary charges.
