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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)

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?