In the workplace there is a temptation to label alleged misconduct, either because we consider doing so makes the misconduct appear more serious, or we consider it necessary to do so as part of a formal disciplinary process.
Contrary to that instinct, the Labour Appeal Court recently confirmed the principle that employers do not have to and should avoid seeking to label or compartmentalise the misconduct they are charging an employee with, such as assault or theft. Rather, it is best to simply describe the conduct which is being complained of and explain why it constitutes misconduct.
In the case of Engen Petroleum (Pty) Ltd v CEPPWAWU and others an employee was charged with assault. The employee pleaded not guilty to the charge of assault.
The Labour Appeal Court found that the plea of not guilty was based on the employee’s understanding from a layman’s perspective of what assault entailed. In this case the Court concluded that it was clear that in aggressively pulling and grabbing another employee by their shirt the employee was guilty of assault in the legal sense of the term ‘assault’. However, in pleading not guilty to the charge of assault, the employee did not appreciate that the legal definition of assault extends beyond physical injurious conduct and includes the mere threat of physical harm.
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