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Plea Bargaining And Alleged Inconsistent Treatment

Labour Edge

The labour court, in Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others,[1] adopted, inter alia, the following approach:

1. it is permissible to utilise the plea bargaining process as contained in s204 of the Criminal Procedure Act[2] in the industrial relations and labour law environment – the viewpoint was expressed that it was hard to see how, without the facility of witness plea agreements, an employer would successfully prosecute certain acts of misconduct;

2. a plea bargain in mitigation of sanction entails a plea deal where a lesser sanction was agreed in exchange for a guilty plea, so as to avoid a hearing;

3. on the other hand, an accomplice plea bargain is concluded with the purpose of securing evidence by the relevant employee against other employees;

4. the mere fact that an employer concludes a plea bargain with one of the employees involved in misconduct, on the basis that such employee testifies against the other employees in an internal hearing and such employer does not conclude a similar plea bargain agreement with the other employees, will not, on its own, amount to inconsistent treatment of the employees by the employer;

5. an employer possesses a wide amount of latitude in selecting who, amongst a group of people allegedly involved in such misconduct, it wishes to conclude a plea bargain agreement with and, in this regard, the following are some of the factors that may be taken into account by the employer in selecting a specific employee for such purposes:

(a)      an assessment of the employee’s availability, strength and credibility as a prospective witness;

(b)     trustworthiness and ability to withstand pressure to recant;

(c)      depth of knowledge of the facts which make up the misconduct;

(d)     access to corroborating evidence;

(e)      cooperation and initiative during the investigation;

(f)      attitude of remorse before the benefit of a lesser sanction was offered; and

(g)     the employee’s previous disciplinary record.

6. where an employee alleges that an employer has unfairly selected an employee to conclude a plea bargain, such employee has to lay an evidentiary burden for unfairness before the employer is called upon to justify its decision[3]

7. the following are some factors indicating that an employer unfairly selected an employee to conclude a plea bargain:

(a)      that the evidence the witness gave was not reasonably necessary to secure a guilty finding against the accused employee(s), because, inter alia, such evidence was readily available from another source;

(b)     an imbalance in the relative degree of culpability of the witness and the accused employee(s), such that the proverbial ‘big fish’ was used to secure a guilty finding against the ‘little fish’;

(c)      that the decision to conclude a plea bargain was induced by an improper motive, such as favouritism or capriciousness; and

(d)     unfair racial, gender or other discrimination in favour of the accomplice witness or against the remaining accused employee(s).

 

[1] Supra
[2] 51 of 1997, as amended
[3] See also Masubelele v Public Health and Social Development Sectoral Bargaining Council and Others (LC) (JR 1151/2008)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?