Employers are inclined to sigh with relief when an employee apparently confesses when they are being investigated in relation to
suspected misconduct.
It is easy to understand why. At face value, an employee who confesses to misconduct is likely to plead guilty in a subsequent
disciplinary hearing and not dispute any potential dismissal.
Yet, the script does not necessarily play out this way, with apparent confessions being withdrawn or even denied at disciplinary hearing
or even arbitration stage.
South African case law tells us that for a confession to be relied upon, it is important to establish and be able to prove that the
confession was made voluntarily.
For example, in OK Bazaars (A division of Shoprite Checkers) vs CCMA & Others (2000) 21 ILJ 1188 (Labour Court), it was held that:
“It follows that if a confession is made voluntarily and shows the infraction of a disciplinary code or a breach of contract, it is, in the absence of some other satisfactory explanation by the employee concerned, sufficient to prove his or her misconduct.”
In yet another case, Western Levels Deep West Mine/NUM obo Xhanywa (1999) 8 BALR 1003 (IMSSA), the arbitrator held that when
an employer seeks to rely on an alleged confession, it must prove that it was actually made and made voluntarily.
As there was no evidence to support the evidence of a single witness that the grievant had indeed confessed voluntarily, the employer
failed to discharge the onus of proving that the dismissal was fair.
In Nweba v Coca Cola Fortune (2004) 10 BALR 1249 (CCMA) Brand C emphasised, as noted in SASBO obo Daniel Maphanga v First
National Bank (GATW5295-13), that “the proper test for the admissibility of confessions is to establish whether on a balance of probabilities the confession was made freely and voluntarily, not whether it would survive a challenge in a criminal court”.
However, in the Commission for Conciliation, Mediation and Arbitration (CCMA) hearing in FAWO obo Sotyato v JH Group Retail Trust
[EC19119 – 2001], the commissioner held that although the employer had submitted that the dismissed employee had signed a statement confessing to having stolen beer, “The employee denies this and the company argues that the employee admitted committing the offence, and relies on a ‘confession’ allegedly made by the employee to prove that point. The employee denies making the confession and argues that the signature that appears on that document is forged and not his.”
“Other documents containing the employee’s signature were presented by the company to prove that the signature that appears on the
confession was indeed the employee’s signature.”
“I’m not a hand-writing expert nor did the company present such an expert witness. Under the circumstances, I must look at other
factors to determine whether the company has established the authenticity of the alleged confession. The manager who allegedly caught
the employee stealing is the person who took the ‘confession’. The confession is allegedly signed by the employee and no other person
witnessed the making or signing of this confession.
In legal terms, a confession is a sworn statement signed by the person making it, in which he admits to committing an offence and is attested to before a commissioner of oaths, normally a magistrate. The said document has to be made voluntarily and without any coercion.
“In this case the ‘confession’ was allegedly made to the accuser, it is not a sworn statement and was not witnessed by any other person
other that the accuser. The company bears the onus to prove, on a balance of probabilities, the commission of the offence for which the
employee was dismissed.”
“In this matter, I’m confronted by two mutually exclusive versions of the two parties. Given these versions, I have to determine ‘what
probably happened’ on the day in question and which of the two versions is probably true.
On the basis of the evidence before me, I am unable to make that determination and the company, which bears the onus of proof, has
failed to persuade me that its version is the probable one.”
This suggests that employers should have an employee sign confession in the form of an affidavit to ensure that the authenticity and
legitimacy of the confession is beyond reproach at the CCMA, a Bargaining Council or the Labour Court.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
Visit www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]
