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 Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?