Competent Verdicts in Disciplinary Enquiries: When "Getting the Charge Wrong" Doesn't Mean Getting It Wrong

Anndine Dippenaar
2 days ago
3 min read

Updated: 17 hours ago

What Exactly Is a Competent Verdict?

In simple terms, a competent verdict allows a disciplinary chairperson (or arbitrator) to find an employee guilty of misconduct that differs from what was explicitly charged—provided the employee knew the factual conduct being investigated and wasn't prejudiced in their defense.

As the Labour Appeal Court explained in the landmark EOH Abantu case:

"Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly."

The Real-World Application: Three Instructive Cases

Case 1: The Microsoft License Key Mishap (EOH Abantu)

An IT team leader sent proprietary software keys to his girlfriend's mother. He was charged with "dishonesty" but the disciplinary hearing couldn't prove intent. Instead, they found him guilty of "gross negligence"—a charge that never appeared on the charge sheet.

The Labour Appeal Court upheld the dismissal for the following reasons:

The employee knew exactly what conduct was being investigated (sending the keys)
He wouldn't have defended himself any differently had negligence been the formal charge
His own version established the negligence

Key principle: The categorization matters less than the employee's knowledge of the alleged conduct.

Case 2: The "Unexpressed Fourth Allegation" (Machi v CHEP)

An HR Manager claimed illness to skip a work event, then immediately chaired a disciplinary hearing for another company during work hours. She was charged with:

Gross negligence (recruitment-related)
Dishonesty (about the flight booking)
Breach of conflict of interest rules

She was found not guilty of all three formal charges. However, the arbitrator identified an "unexpressed fourth allegation"—that she had abused trust by working for another entity during company time under false pretenses.

The Labour Appeal Court confirmed the dismissal, holding that this wasn't a "new" charge but rather "the very heart of the narrative presented by the employer" from the outset. The employee had ample opportunity to defend against this core allegation.

Key principle: If the conduct forms the factual foundation of the employer's case and was evident throughout, it's not ambushing the employee to rely on it.

Case 3: The Betting Shop Accomplice (Hollywood Sportsbrook)

An employee was charged with failing to report a colleague who was taking illegal credit bets. At arbitration, the employer's representative stated she was "actually an accomplice through the misconduct." Video evidence showed she facilitated the bets by handing her colleague a phone with betting instructions.

The Labour Court held that being an accomplice was a competent verdict. The employee knew from the opening statement what case she had to meet, and her defense wouldn't have differed whether charged with "failing to report" or "being an accomplice."

Key principle: Competent verdicts include not just lesser offences, but conduct that is "akin to" or forms part of the same factual matrix as the charged misconduct.

The Critical Test: Prejudice

The golden thread running through all these cases is the absence of prejudice. A competent verdict is only permissible if:

The employee had adequate notice of the factual conduct under investigation
The employee would not have defended differently had the alternative characterization been explicit
The conduct was part of the employer's case from the investigation stage onward

The doctrine of competent verdicts is not a license for sloppy charge sheets. Rather, it's a recognition that fairness in disciplinary processes is about substance over form. Your charge sheet should be as precise as possible, but a less-than-perfect categorization won't sink your case if:

You've been transparent about the conduct under investigation
The employee had a genuine opportunity to respond
Your case file shows a consistent narrative from start to finish

The courts have given us workable principles. The challenge for HR professionals is applying them with both rigor and common sense—ensuring that our disciplinary processes are fair, defensible, and focused on what really matters: holding employees accountable for genuine misconduct while respecting their right to know the case against them.

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