BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: labourlaw@absamail.co.za.
It is understandable that employers assume that employees who confess to misconduct can be automatically fired. However, there are numerous reasons why this is not true. For example:
- Even where the employee does confess he/she is still entitled to a proper hearing
- Other facts may show the confession to be false
- The employee may not have understood what he was doing when he/she signed the confession
- The confession may have been coerced
- The act to which the employee confessed may not amount to misconduct
- Even where the employee properly confesses to an act of misconduct it may not be a serious enough infringement to merit dismissal
- The CCMA might find, for technical reasons, that the confession was invalid.
We need to look at each of these factors more closely:
EVEN WHERE THE EMPLOYEE DOES CONFESS HE/SHE IS STILL ENTITLED TO PROPER PROCEDURE
The Labour Relations Act (LRA) gives employees the unassailable right to a hearing. Case law has reinforced this requirement countless times and not even a confession of murder will allow the employer to deviate from this principle.
OTHER FACTS MAY SHOW THE CONFESSION TO BE FALSE
Where, for example, there is evidence that the accused employee was not present when the misconduct was perpetrated the employer must suspect that the employee fabricated the confession. This could, for example, have been done in order to cover up for a colleague or relative.
THE EMPLOYEE MAY NOT HAVE UNDERSTOOD WHAT HE WAS DOING WHEN HE/SHE SIGNED THE CONFESSION
The employee may be asked to sign a confession document but may, for example, think he/she is signing acknowledgement of receipt of a notice of a disciplinary hearing. Should this be proven the confession will become invalid.
THE CONFESSION MAY HAVE BEEN COERCED
If the confession was made under duress it will not qualify as a confession at all. At best it will constitute a meaningless statement coerced out of the employee; and at worst it will act as proof that the employer was seeking a scapegoat or was trying to concoct a false case against the employee as a means of getting rid of him/her for unacceptable reasons.
THE ACT TO WHICH THE EMPLOYEE CONFESSED MAY NOT AMOUNT TO MISCONDUCT
The employee may admit to having been absent from work without permission for a week. However, if the employee was in hospital for that week he/she cannot be fired for misconduct.
EVEN WHERE THE EMPLOYEE PROPERLY CONFESSES TO AN ACT OF MISCONDUCT IT MAY NOT BE A SERIOUS ENOUGH INFRINGEMENT TO MERIT DISMISSAL
Dismissal would be unfair where the employee admits to having arrived half an hour late for work especially if this is a first or second offence because dismissal must be reserved for repeated offences or for gross misconduct.
THE CCMA MIGHT FIND, FOR TECHNICAL REASONS, THAT THE CONFESSION WAS INVALID.
For example, in the case of FAWU obo Sotyato vs JH Group Retail Trust (2001, 8, BALR 864) the employee signed a confession that he had stolen two bottles of beer. However, the CCMA ruled out this confession on the grounds that it had not been sworn before a commissioner of oaths.
While the above dangers relating to the use of confessions are very real properly obtained and properly used confessions can form an important aspect of evidence. The employer therefore needs to obtain the expertise necessary to optimise the effectiveness of confessions at disciplinary hearings.
To attend our 8 May 2009 seminar on RETRENCHMENT AND HOW TO WIN AT THE CCMA please contact Ronni at ronnisra@absamail.co.za or on 084 521 7492 or 011 782 3066.