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)

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.

What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:

(a)     where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;

(b)     where the parties reached an agreement as to what such documents purport to portray?;

(c)     where the parties reached an agreement that the documents should be regarded as evidence?

The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?

The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:

(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]