This is the third alert notice of those issues that will cause YOU to slip and definitely trip in 2025. These notifications have been compiled largely on the basis of queries that our call- centre receive, as well as the solutions provided thereto by our fast-tracking team.
Some of these alert notice issues will eventually be incorporated into our mouth-watering annual seminar workbook, as well as our delicious and spicy PowerPoint presentation compiled on an annual basis.
The attached notice deals, amongst others, with the following tricky issues:
- the requirements to be met for a statement made during an internal disciplinary enquiry to constitute a confession before a magistrate
- the requirements to be complied with for a confession to be valid
- vicarious liability of an employer for the delicts committed by its employees
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FURTHER DETAIL OF THE IDENTIFIED TRICKY ISSUES
- The scenario is as follows: an employee is charged with fraud. It is alleged that he unlawfully and intentionally defrauded and prejudiced his employer by misrepresenting that he and two other employees were entitled to overtime payment while knowing that they were not entitled to such payment. With reference to such circumstances, how did the labour appeal court recently deal with the following issues:
- what are the requirements to be met for a statement made during an internal disciplinary enquiry to constitute a confession before a magistrate?
- in criminal cases, s217(1) of the Criminal Procedure Act 51 of 1977 regulates admissions. Apart from this statutory provision, what are the other requirements to be met in criminal law to prevent false and coerced confessions leading to wrongful convictions?
- what are the essential elements in labour disciplinary proceedings for a statement to constitute a confession?
- what are the principles governing the admissibility of confessions in labour law?
- on what basis did the labour appeal court identify a further principle governing confessions in labour matters, amounting to the approach that a valid confession does not, without more, justify an employee’s dismissal?
- can a confession be invalid because it was made in fear of a criminal prosecution?
- is an employee entitled to information relating to the charges the employer contemplates bringing against him, before confessing?
- if an employee confessed to an offence, can such employee still plead not guilty to the charges, or challenge the confession itself at the disciplinary enquiry?
- It is generally accepted that not every act of dishonesty justifies dismissal. It is also accepted that an act of gross dishonesty seriously impacts negatively on the trust relationship between the parties in an employment relationship. What are some of the factors recently identified by the labour appeal court, with reference to G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881 (LAC), to determine whether dismissal is the appropriate sanction and a sensible operational response to risk management?
- How did the high court recently, with reference to F v Minister of Safety and Security and Another 2012 (1) SA 536 (CC), formulate the general principles applicable to vicarious liability of an employer for the delicts committed by its employees?
- What is the test to be applied to determine vicarious liability when an employee commits the delict while going about the employer’s business?
- What is the test to be applied to determine vicarious liability when the wrongdoing takes place outside the course and scope of employment – the so-called deviation cases?
