Be 100% sure of your facts before you dismiss
South Africa’s government has implemented a set of labour laws that, over the years, have become immensely restrictive on employers. Government has done so in the name of fairness for employees. However, many employers do not gather enough proof before they dismiss an employee…
In labour law, proof does not consist of:
- Trumped up allegations made against an employee,
- Recriminations against the employee for having laid a complaint,
- Testimony made by unreliable witnesses,
- Documents that do not show guilt,
- Incomplete or one-sided evidence,
- Hearsay evidence, and
- Reports that are made from flawed investigations.
Instead, proof of guilt is a far more scientific and factual exercise requiring:
- Non-contradictory testimony,
- Evidence that has been tested and cross-examined by the accused’s employee and, despite such a test, still holds water,
- Documents that are validated and that clearly show the employee’s misconduct,
- Evidence that is backed up by other evidence,
- Testimony from credible witnesses, and
- Evidence derived from thorough and honest investigation.
Genuine proof, or the acceptability of evidence, is not determined by the status of the accuser but rather by the skill the investigator and prosecutor show in gathering, preparing and presenting the evidence in a legal and effective manner.
Have a look at the following case which illustrates this point.
In the case of Mkhwanazi vs the Presidency:
- Ms Thoko Mkhwanazi was fired for allegedly falsifying an invoice. At the time, Mkhwanazi was a director in the Office of the Rights of the Child in the Presidency.
- According to reports, she confronted a consultant who was allegedly Essop Pahad’s (Minister in the Presidency) friend. The confrontation related to another consultant’s sexual harassment complaint.
- Not long after this, Mkhwanazi was accused of misconduct. She was suspended and then dismissed, eight months later, for “wilfully and intentionally instructing the falsification of an invoice”.
- Mkhwanazi alleged that the charges had been “trumped up in an attempt to remove her from the Presidency at all costs”. She therefore referred her dispute to the General Public Service Sectoral Bargaining Council.
- Her employer alleged that she committed the falsification by using information from previous travel invoices that had already been paid. This, the employer alleged, breached the public service code of conduct and the Public Finance Management Act.
- The employer’s investigation revealed that Mkhwanazi had opened an account with Supersonic Travel despite the Presidency already having such an account.
- However, at the arbitration hearing the council found that the decision to open this second account had been taken at a meeting attended by the accused’s deputy, the assistant director for finance in the Presidency and officials from the finance department.
- It was also found that Mkhwanazi had made no effort to conceal the second account and had not used it for her personal benefit. A material witness for the Presidency was a former secretary who had, according to reports, previously changed a consultant’s quotation from R400 000 to R4 million without authority.
- The witness was later fired for misusing the Presidency’s letterhead to help an acquaintance. The council found this witness to be a “remarkably dishonest witness who has no credibility at all”.
According to reports, the arbitrator said that the Presidency had:
- Made a rushed and baseless decision against Mkhwanazi,
- Relied on a dubious character as a material witness,
- Failed to give the accused an opportunity to respond to the allegations,
- Wasted the taxpayers’ money, and
- Implemented an unfair dismissal.
In the end, the Presidency was required to reinstate Mkhwanazi.
The fact that the Presidency wanted to take the council’s decision on review to the Labour Court suggests that it believes that Mkhwanazi was guilty as charged:
- Even if an employee is reinstated, it is still possible that she was guilty as charged and may have deserved to be dismissed.
- Nevertheless, the employee may still be reinstated because the onus of proving that the dismissal was fair rests on the employer.
- Even if an employee has committed murder, the CCMA or bargaining council will not uphold her dismissal where there was insufficient evidence brought to prove her guilt.
If the presidency cannot get away with inexpert presentation of evidence then neither can any other employer. In labour law winning is not about power, it is about truth and the legal expertise to make the truth look like the truth.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
