Proving Your Case: Know Your Elements Of Misconduct

Proving Your Case: Know Your Elements Of Misconduct

Proving an employee’s guilt to a specific offence is like baking a cake: If you don’t put in the right ingredients, the cake will flop. To know which ingredients you must put in, you must have a recipe, which tells you exactly what, and how much off a certain ingredient is needed. Similarly, in the Labour Law, a specific misconduct requires specific elements to be proven to find an employee guilty on a balance of probabilities.

Therefore, if an employer does not know what the specific definition is or what the elements are that needs to be proven in respect of a certain misconduct, the employer will not know which points to focus on or what type of evidence to submit and inevitably fail to prove the guilt of the employee.

Here is a quick guide to especially tricky offences:


Dishonesty, which can include doing something or not doing something involves the intention to lie, cheat, steal or deceive. The most common example is that of an employee that takes an item belonging to the employer without permission or paying for it. To succeed in this case the employer must prove that the employee had the intention to be dishonest to benefit himself – a difficult task especially with cashiers and till shortages.

Questions to ask yourself is:

  1. Why can it be said that this person had the intention to be dishonest and not merely negligent?
  2. How was this employee dishonest?
  3. Is there corroborating evidence of this dishonesty?


Negligence occurs when an employee deviates from the standard of care expected from him. The employer need not prove the employee had the intention to deviate from the standard of care.

To succeed in one’s case the employer must provide evidence of the following:

  1. What is the specific task that had to be performed?
  2. In what way must this task be performed?
  3. Can it be proven with certainty that the employee knew it was their duty to perform this task and did the employee know in what way the task had to be performed (was the employee trained, has the employee been performing the task for a substantial amount of time, did he or she receive a how-to guide etc.)?
  4. What the employee should have done but didn’t or why is the resulting damage or potential risk directly linked to the employee’s act or omission and how it could have been avoided?
  5. Is there not another reason or external factor that could be the cause for the resulting damage or potential risk?

Assault and Intimidation

These 2 offences easily get confused because their definitions are rather similar.

Assault can be defined as the unlawful and intentional application of force to a person or the threat that force will be applied. Intimidation can be defined as the act of making someone afraid to force someone to do something or to refrain from doing something. The latter part is the most important point an employer must prove if the employer wishes to succeed in a charge of intimidation – that the threat (which had to have been uttered seriously) was aimed to induce some form of action or inaction in the recipient of the threat.

If the employer can not prove that the threat was made to induce some form of action or inaction but merely prove that a serious threat of violence was made – the charge should be that of assault and not intimidation. If the employer can prove that the threat was made to induce some form of action or inaction in the recipient the charge should be that of intimidation, for example: “If you don’t participate in the strike we will burn your house down”.

Insubordination and Insolence

Despite being so apparently similar the courts treat these 2 offenses separately. While insolence can be described as a failure to show respect by being rude, derogatory or insulting, insubordination on the other hand is described as the willful, deliberate and serious challenge to or defiance of the employer’s authority Often insubordination occurs when the employee openly refuses to follow a direct instruction. However, it is not a necessary requirement that an instruction should have been issued. To succeed in a charge of insubordination the employer must be able to prove a deliberate, calculated and intentional defiance of his or her authority. The employer should find out what the context of the incident was.

  1. Who said what and why?
  2. How was it said or done?

There is a big difference between an employee that just walks away as an employer is speaking to him and an employee that walks away when an employer is giving him an instruction to do something. Make sure you do a thorough investigation before proceeding.

Given the intricacies of the abovementioned offences, it requires thorough investigation by the employer with due regard of the elements of the offence that needs to be proven to be successful in a disciplinary hearing. In conclusion, just one last tip: One could rather have too many witnesses and pieces of evidence than too little.


Este Thompson is a SEESA Labour legal advisor at our Cape Town office since 2011. She obtained her B.A. degree in 2003 at the North West University and her LLB degree in 2006 at UNISA while working for the Department of Justice and Constitutional Development.


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