In the recent decision of Machi and Chep SA (Pty) Ltd and Others[1] the Labour Appeal Court confirmed that an overly formalistic approach to disciplinary charges is inappropriate.
Background Facts
Ms Machi was employed by CHEP as a Senior Human Resources Business Partner (HR Manager).
Ms Machi was scheduled to attend a company event in Cape Town on the afternoon of 6 July 2017. During the morning, she contacted her manager and requested permission to miss the event and return early to Durban, explaining that she was feeling unwell. She was granted permission.
Ms Machi flew back to Durban where she proceeded to a company, Zala Corporates, and chaired a disciplinary hearing. In the disciplinary outcome, she described herself as the ‘HR Director’ of Zala Corporates.
CHEP charged Ms Machi with the three charges (only charges 2 and 3 were relevant to the ensuing litigation):
Charge 1: …
Charge 2: 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.
Charge 3: Gross Misconduct for failing to inform CHEP that she was ‘acting as a Director’ of Zala Corporates, in breach of the Brambles Code of Conduct, which prohibits conflicts of interest, including outside employment.
The chairperson of the internal disciplinary enquiry found Ms Machi guilty of all three charges.
In relation to charge 2, the chairperson noted that Ms Machi had “abused the trust relationship” and that “it was not disputed that she then engaged in other work for another company during Company time”. For charge 3, the chairperson found that she had “acted as a Director of Zala Corporates during working hours”. The chairperson concluded that the trust relationship was irreparably broken and recommended a summary dismissal, which CHEP implemented.
The Arbitration and the ‘Unexpressed Fourth Allegation’
Ms Machi referred an unfair dismissal dispute to the CCMA.
The Commissioner found that Ms Machi was not guilty of all three formal charges. However, the Commissioner identified what she termed an ‘unexpressed fourth allegation’. She found Ms Machi guilty of misconduct that destroyed the employment relationship when, during normal business hours and after being given permission to miss the event in Cape Town due to her not feeling well, she chaired a disciplinary hearing for another business concern and in the finding described herself as a director of that concern. The Commissioner upheld the dismissal as substantively fair.
The Review Proceedings
On review, Ms Machi contended that the Commissioner had committed a gross irregularity by creating a new charge and finding her guilty of it.
In dismissing the review application, the Labour Court agreed with the Commissioner that the allegation of chairing a disciplinary hearing for Zala Corporates during office hours was part of the substance of the charges and formed part of the reasons for Ms Machi’s dismissal.
The Appeal
The appeal turned on whether the Commissioner committed a reviewable irregularity by finding Ms Machi guilty of, and dismissing her for misconduct, which was not explicitly listed in her charge sheet.
The LAC held that the disciplinary charges, whilst clumsily drafted, were part of a single narrative being the events of 6 July 2017. Charge 2 (dishonesty about her illness) and Charge 3 (conflict of interest through a directorship) were two components of the core conduct. The evidence led at the disciplinary hearing and the arbitration, that she chaired a hearing for Zala after being released on grounds of illness, was the factual bridge between these two charges. The disciplinary hearing chairperson explicitly relied on this conduct in his findings.
The LAC reiterated that the focus must be on the employee’s knowledge of the substance of the allegation, and not its legal label.
On the issue of sanction, the LAC found that the trust relationship had been irreparably damaged and that the sanction of dismissal was reasonable. Ms Machi held a senior and sensitive position in the HR department and the custodian of company policy, ethics, and trust. Her conduct demonstrated a lack of judgment and integrity.
Tip for employers
Disciplinary charges need not be drafted with legal precision and employers must not be too formalistic or technical when preparing a chargesheet.
The critical requirement is that the employee receives adequate notice with sufficient detail of the substance of the allegations of misconduct. The categorisation or labelling of the alleged misconduct is of less importance.
[1] [2026] 4 BLLR 344 (LAC)
Should you require any more information, please contact Melanie Hart at melanie@bv-inc.co.za.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.