The Splitting of Charges in Disciplinary Enquiries: When One Incident Becomes Multiple Charges
- Anndine Dippenaar
- Apr 13
- 3 min read
The Morning That Became Four Charges
It's 4:20 AM at a chemical plant. An employee leaves his workstation without permission during a night shift. He departs the premises entirely, still wearing company PPE with chemical residue. On his way out, a supervisor tries to conduct alcohol testing on him—multiple times.
Four charges later, the employee is dismissed. But were all four charges legitimate, or did the employer impermissibly "split" what should have been a single charge?
This scenario from Industrial Oleo Chemical Products v Pillay D1294/16) [2021] ZALCD 60 (6 August 2021) illustrates one of the most misunderstood aspects of workplace discipline: the splitting of charges. Get it wrong, and even a justified dismissal can be set aside.
What Is "Splitting of Charges"?
Splitting of charges occurs when an employer artificially fragments a single act of misconduct into multiple charges, each describing essentially the same wrongdoing from different angles. It's the disciplinary equivalent of charging someone with both "driving without a licence" and "operating a vehicle while unlicensed"—technically different wording, but fundamentally the same offence.
The concern isn't just semantic. As courts have recognised, improper charge-splitting can:
Unfairly overwhelm an employee with multiple accusations;
Create confusion about what actually needs to be defended;
Give the false impression of multiple separate acts of wrongdoing;
Result in compounded sanctions for what is essentially one act.
The Critical Test: Different Facts, Different Charges
The Pillay case gives us the clearest test for determining whether charges are properly formulated or impermissibly split:
"The facts necessary to prove count 1 are different to those necessary to prove the second count... They relate to completely different circumstances."
Charge 1 (Negligence): "You left the factory without permission or notifying your shift supervisor."
Charge 2 (Gross Negligence): "You left your operational area responsibility unattended."
Were these split charges? The Labour Court said no, reasoning:
"It is quite conceivable that, for example, had Mr Pillay left the workplace, but ensured that another suitable employee remained in his operational area, then charge 2 would not have been applicable."
In other words, you could be guilty of one without being guilty of the other—they required proof of different factual elements.
Contrast this with improper splitting
The court in SAMWU v Rand Water (JR 2355/2019) [2021] ZALCJHB 212 (26 July 2021) criticised what it called "unnecessary splitting of charges" where all charges arose from "a single event which took place on 23 March 2018 in the offices of Mr Dibate at the workplace."
In SAMWU, the charges were simply different legal characterizations of the same factual conduct—failing to follow an instruction and infringing the dignity of a manager during one confrontational encounter. As Judge Cassim noted: "All the relevant facts surrounding the conduct of German amounted to German behaving dismally bad". It was one continuous episode of misconduct, artificially divided into separate charges.
The doctrine against splitting charges isn't about protecting employees who've committed serious misconduct. It's about procedural fairness—ensuring employees know exactly what they must defend against and that sanctions reflect the true gravity of what occurred, not an artificially inflated number of "charges."
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This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.
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