When One Incident Becomes Multiple Charges
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 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 license” and “operating a vehicle while unlicensed”—technically different wording, but fundamentally the same offence.
The concern isn’t just semantic. As courts have recognized, 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.”
Let’s see how this played out in Pillay’s case:
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 criticized 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.”
The key distinction? 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 Practical Test: The “Could You Be Guilty of One But Not the Other?” Question
When drafting multiple charges arising from the same incident, ask yourself:
Could an employee conceivably:
- Commit the conduct in Charge A without committing Charge B?
- Successfully defend against Charge A while being guilty of Charge B?
- Present different evidence or arguments for each charge?
If the answer to these questions is “no”—if guilt of one necessarily means guilt of the other—you’re likely impermissibly splitting charges.
Real-World Applications
Properly Separate Charges (from Pillay)
Incident: Employee leaves hazardous chemical plant during night shift without permission, leaving workstation unattended in dangerous conditions.
Charge 1: Negligence—leaving factory without permission
- Different facts needed: Did he inform supervisor? Did he get permission?
Charge 2: Gross negligence—leaving operational area unattended
- Different facts needed: Was there a competent person left in charge? What was the status of the equipment? Was safety compromised?
An employee could get permission to leave but still be negligent for not ensuring coverage. Or could leave without permission but have arranged adequate coverage.
Improperly Split Charges (Hypothetical Based on SAMWU)
Incident: Employee refuses manager’s instruction and is aggressive during confrontation.
Charge 1: Insubordination—refusing lawful instruction Charge 2: Gross insubordination—failing to comply with reasonable directive
Charge 3: Disrespect—speaking aggressively to manager Charge 4: Misconduct—creating hostile work environment
These all describe the same confrontational episode. The employee either refused the instruction or didn’t—the various formulations don’t require proof of different facts, just different legal labels for the same conduct.
Strategic Charging: When Multiple Charges Make Sense
Sometimes, what appears to be a single “incident” actually comprises multiple distinct acts of misconduct. Consider these scenarios:
Example 1: The Extended Episode
An employee:
- 08:00 – Arrives at work intoxicated (Charge 1: Contravening alcohol policy)
- 09:00 – Refuses testing when requested (Charge 2: Refusing lawful instruction)
- 09:30 – Becomes verbally abusive when manager insists (Charge 3: Misconduct towards management)
- 10:00 – Leaves premises without permission (Charge 4: Unauthorized absence)
Analysis: While occurring on the same day, these are temporally distinct acts requiring separate decisions by the employee. Properly chargeable separately.
Example 2: Different Rule Violations from One Act
An employee removes company property without authorization:
- Charge 1: Theft/unauthorized possession
- Charge 2: Breach of security protocols (by bypassing sign-out procedures)
- Charge 3: Breach of confidentiality (if property contained confidential information)
Analysis: One physical act (taking the property) violates multiple distinct workplace rules. This is generally acceptable, though alternative or competent verdict formulations are cleaner.
While charge-splitting is criticized, it’s not automatically fatal if:
- The employee understood the case to meet
- No prejudice flowed from the formulation
- The substance of the misconduct was properly proven
The challenge for HR professionals is this: you want to be comprehensive in setting out all potential misconduct (especially if you’re unsure exactly what the evidence will reveal), but you don’t want to artificially multiply 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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