In the recent case of Brauns and Others v Wilkes N.O and Others (JA 47/22) [2024] ZALAC 1 (18 January 2024), the Labour Appeal Court (hereinafter referred to as the “LAC”) considered an appeal of a review application by three (3) employees of the South African Police Service (hereinafter referred to as the “SAPS”), who were dismissed in 2016 for dishonesty after they were found guilty of fraud and conspiracy to commit fraud. It was alleged that the First Appellant unlawfully, intentionally, defrauded and prejudiced the State by misrepresenting that he and the other two (2) Appellants were entitled to overtime while knowing that they were not entitled to such payment. It was further alleged that the Second and Third Appellant unlawfully, intentionally, defrauded and prejudiced the State by way of misrepresentation for their failure to reveal or inform the SAPS that they received payment for overtime, which was not due to them. All three (3) Appellants were also charged with conspiracy to commit fraud by conspiring with each other to defraud the SAPS.
In the Safety and Security Sectoral Bargaining Council (SSSBC)
The three (3) Appellants being dissatisfied with their dismissal, approached the SSSBC to challenge the fairness of their dismissal as the Appellants’ believed there was no evidence to prove the charges against them.
At arbitration, the SAPS presented evidence that the First Appellant, who was employed as a financial clerk, captured and approved overtime payments for the benefit of the other two (2) Appellants, being his wife and his sister-in-law. Further that, the two (2) Appellants knew that they received the payments and that they were not entitled to the amounts paid to them for overtime. Upon discovering the First and Second Appellant’s alleged misconduct, a meeting between the Commander, the internal investigating officer and First Appellant occurred. During the meeting, the First Appellant apologised for disappointing his family and the SAPS management. He also voluntarily apologised to the Station Commander for his actions. Arrangements were then made for the First Appellant to appear before a magistrate in order for him to make a formal confession, which he did. Another witness also testified on behalf of the SAPS that the First Appellant stood up and apologised to management for his misconduct and acknowledged that what he did was wrong, in the presence of everyone at a SAPS parade. This was confirmed at the arbitration hearing by a fellow colleague who was also present at the parade. The magistrate who reduced the First Appellant’s confession to writing was also present at the arbitration hearing and confirmed the procedure followed by her in taking down the confession.
The First Appellant’s version was that capturing overtime transactions is not an easy feat and he disputed that he captured the overtime in question. According to him, he was on leave for fifteen (15) days at the time the overtime was captured and authorised. He also alleged that the confession he made to the magistrate was directed by the Commander, who told him what to say in his confession. During cross-examination, the First Appellant stated that he did not inform the magistrate that he was influenced to make the confession at the time because he thought the Commander was helping him to ensure that criminal charges would not be proffered against him. Additionally, when asked if the money he received was due to him, the First Appellant stated that he did not know the money was not due to him. Furthermore, the Second Appellant admitted that she did not work overtime and received an undue amount but contended that at the time of receiving the payments she was not aware that it was for overtime. According to the Second Appellant, she assumed the amounts were in respect of some other legitimate reason, such as back pay on medical aid, pay progression or a salary increase. For this reason, she never reported the matter to the SAPS. The Third Appellant also testified that she did not know about the payment being made into her bank account and similarly stated that she thought that the money could have been for medical aid, back pay, pay progression or increase-related payments.
The SSSBC commissioner ultimately found the dismissal of all three (3) Appellants to be substantively fair and the commissioner accordingly dismissed the matter.
In the Labour Court (LC) and LAC
The three (3) Appellants approached the Labour Court (LC) seeking to review the award issued by the SSSBC commissioner. The Appellants complained, inter alia, that the commissioner failed to consider the material presented before him, thereby misconceiving the nature of the enquiry and arriving at an unreasonable outcome; and that the finding that the dismissal of the Second and Third Appellants was substantively fair was unreasonable. The Labour Court was not convinced by the Appellants’ assertions and found that the commissioner’s arbitration award was one that a reasonable decision-maker could make. The Appellants’ review application was dismissed in the LC and for this reason they challenged the outcome of the review application in the LAC. They contended that the LC erred in reaching its conclusion, however, this was not the finding of the LAC upon analysis of the matter.
On the issue of the commissioner’s decision to accept the confession, the LAC held that it was not disputed that the First Appellant’s statement made before the magistrate was a confession and that the First Appellant freely and voluntarily confessed to events and facts associated with the offence. The LAC further set out the legal principles applicable to confessions in the context of disciplinary proceedings. To this point the LAC inter alia, held that:
- A confession is a statement in which a person acknowledges that he or she has committed one or more offences or crimes. It is a statement made against the interests of the person making the statement;
- An essential element in labour disciplinary proceedings is that a confession is an acknowledgement, on the part of an employee, of a fault, wrongdoing or breach of a rule;
- An employer has the onus to prove that the confession was made and is valid;
- A confession is said to be valid if it is freely and voluntarily made without undue influence, coercion, or intimidation from the employer or any other person;
- The employer has to show that the confession was clear and unambiguous and that the employee understood the consequences of the confession;
- A confession is extra-curial (made outside the court) and generally forms part of an investigation into an employee’s misconduct; thus, it is not made by first finding out what information the employer has and only then making the confession;
- A valid confession does not, without more, justify an employee’s dismissal; and
- A confession does not amount to a plea of guilty on the part of the employee, and thus, the employer is still, even in the face of a valid confession, required to follow a fair procedure and determine if there exists substantive reason to terminate the employment relationship.
In the end, the LAC was of the view that the confession was valid, the decision of the SSSBC commissioner did not fall outside the ambit of reasonableness and that the LC cannot be faulted in its finding that the commissioner’s award was one which a reasonable decision maker could reach. The LAC consequently dismissed the Appellants’ appeal.
Important Points to Consider
This case is interesting because it highlights that a confession or acknowledgement of wrongdoing alone is not a justifiable reason to terminate an employee’s employment. Notwithstanding the validity of a confession made by an employee for their alleged misconduct, an employer is still required to have substantive reasons and must follow a fair procedure prior to dismissal.
Confessions do not replace fair disciplinary processes, nor should they be used as the sole reason for dismissal. Additional evidence must be provided in conjunction to a valid confession. Employers who fail to discharge their onus of proving that a dismissal of an employee is both procedurally and substantively fair, run the risk of losing a costly and time-consuming litigation battle further down the road.
Andrea Miguel – Candidate Attorney
JUSTINE DEL MONTE & ASSOCIATES INCORPORATED
