Would it be an inconsistency if the co-perpetrator is given a lesser sentence should the employee testify?
Section 3 (6) of Schedule 8 of the Labour Relations Act (LRA) provides that the employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between 2 or more employees who participate in the misconduct under consideration.
A distinction can be drawn between historical inconsistency and contemporaneous inconsistency:
Historical inconsistency requires that an employer apply discipline consistently with the way in which discipline has been applied to other employees in the past.
Contemporaneous inconsistency requires that discipline be applied consistently as between 2 or more employees who commit the same misconduct at the same time.
The question of whether an employer can be more lenient towards an employee who is prepared to testify against other employees who committed misconduct was answered in the case Member of the Executive Council: Department of Health, Eastern Cape Province v Public Health and Social Development Sectoral Bargaining Council & others (2016) 25 LC.
8 employees in the department’s emergency services were involved in using an aircraft provided by a sub-contractor to fly to a soccer match and back. The aircraft was provided free of charge by the service provider, which also paid for the employees’ accommodation, meals and match tickets.
The emergency services manager prepared a response after he consulted with the employees, which falsely stated that the employees were required to render medical assistance at the soccer match. The employer subsequently discovered the employees’ misconduct and misrepresentation and 5 out of the 8 employees were subjected to disciplinary enquiries.
The 5 employees were dismissed but the manager who had prepared the false response resigned and was later re-employed. 1 of the employees who had not been present when the response was shown to the employees, was issued with a final written warning. Another employee pleaded guilty in terms of a plea bargain agreement. He was issued with a final written warning and was suspended for 2 months without pay. He further agreed to testify on behalf of the department at the employees’ disciplinary hearing and the indemnity from dismissal was conditional upon him being ‘frank and honest’ in his testimony.
The arbitrator at the Bargaining Council held that the dismissals of the 5 employees were substantively unfair because the sanction of dismissal had been inconsistently applied amongst them. The dismissed employees were all reinstated subject to a final written warning and the department was ordered to pay them 3,5 years back pay.
The employer referred the matter to the Labour Court to review the award issued by the Council. With regards to the plea bargain agreements, employers have a wide discretion. A plea bargain may only be attacked if the selection exhibited mala fides.
The Labour Court is of the view that when an employer offers 1 within a group of suspected wrong-doers a plea bargain to enable it to acquire evidence of wrong doing within the group, this, on its own, does not constitute inconsistent application of discipline. To not allow witness plea bargains on the basis that they create inconsistency would shut the door on an important mechanism used in criminal law every day. With appropriate checks and balances and fairly imported into labour law as a method of obtaining evidence of wrong doing.
The court provided the following guidelines when offering plea bargains:
- An assessment of the employee’s availability.
- Strength and credibility as a prospective witness.
- Trustworthiness and ability to withstand any pressure to recant.
- The depth of knowledge of the facts which make up the misconduct.
- Access to corroborating evidence; cooperation and initiative during the investigation.
- The attitude of remorse before the benefit of a lesser sanction was offered.
- Previous disciplinary record.
- When an employer decides to offer 1 within a group of suspected wrong-doers a plea bargain as part of the disciplinary process took into account the above factor and acted without mala fide then offering an employee a plea bargain would not amount to inconsistency.
ABOUT THE AUTHOR
Nicole Sauls joined SEESA Labour in 2014 as legal advisor. She obtained a B.Com (Law) degree from the University of the Western Cape in 2016; obtained an LLB from the University of South Africa in 2015 and is currently studying towards her Master’s Degree in Labour Law at the University of South Africa.