BY Naa’ilah Abader , Thato Maruapula AND Thandokazi Maxakatha
Can an employer rely on an employee’s confession to prove misconduct?
A confession is a statement in which a person acknowledges that he or she has committed an offence or crime. In both criminal and civil cases, including labour matters, a confession is a statement that is contrary to the interests of the person making the statement. In Quinton Brauns and Others v The South African Police Services and Others, the Labour Appeal Court (“LAC”) had to determine, inter alia, whether an arbitrator erred in finding that a confession made by an employee was admissible.
Mr Quinton Brauns (“Mr Brauns”), Mrs Vannesa Brauns and Ms Yolanda Schoeman (the “Applicants”), all former employees of the South African Police Services (“SAPS”), were charged and found guilty of misconduct in the form of dishonesty and dismissed. The SAPS alleged that the Applicants had made numerous unauthorised overtime payments to each other using the SAPS payment system and the credentials of their colleagues without their knowledge. Prior to the disciplinary hearing, Mr Brauns admitted to making the unauthorised payments and later, he reiterated the confession in a written statement. Following their dismissal from the SAPS, the Applicants referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council (“Council”).
The arbitrator found that the Applicants had “benefited from the payment of overtime in respect of which they had not worked and therefore in respect of which they were not entitled” and dismissed the unfair dismissal dispute. Interestingly, in reaching this conclusion, the arbitrator considered the confession made by Mr Brauns and found that the statement that was handed in was indeed Mr Brauns’ confession and that there was no indication that the statement was “involuntarily or not made in the 1st applicant’s full and sober senses.”
Labour Court proceedings
The Applicants sought a review of the arbitrator’s award in the Labour Court and alleged that, inter alia, the arbitrator had failed to consider material evidence, misconstrued the nature of the enquiry and had made factual and legal misdirections. The Labour Court, however, found the award to be reasonable and accordingly dismissed the Applicants’ review application.
Labour Appeal Court Proceedings
The Applicants persisted with their grounds of review in the Labour Appeal Court (“LAC”) but the LAC rejected their various arguments and found that the dismissals had been fair. In coming to this decision the LAC considered whether the arbitrator had adopted an incorrect approach in accepting Mr Brauns’ confession before a magistrate as evidence. The LAC examined the law concerning confessions and found that in a labour law context, a confession is admissible as evidence; “ if it is freely and voluntarily made without undue influence, coercion, or intimidation from the employer or any other person. The other requirement for a valid confession is that the employer must show that the confession was clear and unambiguous and that the employee understood the consequences of the confession.”
The LAC also found that the arbitrator had adopted the correct approach in dealing with the admissibility of the confession and that Mr Brauns’ confession complied with the requirements for an admissible confession. The LAC further found that the arbitrator had considered the evidence in its totality before arriving at a decision that the Applicants’ dishonesty warranted a sanction of dismissal and accordingly found no reason to fault the arbitrator’s findings and dismissed the appeal.
An employer who alleges that an employee has committed misconduct must prove this on a balance of probabilities. In proving this, an employer may, amongst other things, rely on a confession made by an employee, provided that the confession meets the requisite requirements for admission as evidence.
The LAC reasoned that a confession in a labour law context does not amount to a plea of guilt and that an employer is still “required to follow a fair procedure and determine if there exists substantive reason to terminate the employment relationship. In other words, the employer has to show that the dismissal was an appropriate sanction in the circumstances of the case.” Accordingly, a confession from an employee who is accused of misconduct would not be the end of the inquiry as the employer is still expected to follow a fair procedure and show that a sanction of dismissal was appropriate in the circumstances.
Reviewed by Peter le Roux, Executive Consultant in ENS’ Employment Practice
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