BURDEN OF PROOF - WHY EMPLOYERS MUST PROVIDE ACCURATE INFORMATION TO THEIR REPRESENTATIVES

In South Africa’s dynamic labour environment, disputes between employers and employees, ranging from disciplinary warnings to retrenchments, are governed by the Labour Relations Act (LRA), and the Basic Conditions of Employment Act (BCEA). Among the legal principles in these matters is the burden of proof, which determines who must prove what during a dispute.

For employers, understanding this burden and ensuring that their representatives are equipped with accurate and relevant information is not just a necessity, it is imperative.

What Is the Burden of Proof?

Example:

Under Section 192 of the Labour Relations Act 66 of 1995:

• The employee must first prove that a dismissal occurred.

• Once established, the employer must prove that the dismissal was both procedurally and substantively fair.

This means the employer must demonstrate:

• That the reason for dismissal was valid (e.g., misconduct, incapacity, or operational requirements).

• That a fair procedure was followed before the dismissal.

Failure to meet this burden can result in the dismissal being declared unfair, leading to reinstatement, compensation, or other remedies.

Why Accurate and Relevant Information Is Crucial

Your representative, whether an HR manager, legal advisor, representative, or external consultant, is your voice in dispute resolution forums like the CCMA, Bargaining Councils, or Labour Court. Their ability to defend your position depends entirely on the quality of the information you provide.

Key Reasons:

1. Building a Defensible Case

• Evidence must support the fairness of the dismissal or disciplinary action.

• Includes disciplinary records, consultation notes, witness statements, and company policies.

• Incomplete or inaccurate records weaken credibility.

2. Demonstrating Substantive Fairness

• Show that the employee breached a known and consistently applied rule.

• If the rule was not communicated or enforced uniformly, the dismissal may be deemed unfair, even if misconduct occurred.

3. Navigating Procedural Requirements

• Fair process includes notice, hearing, opportunity to respond, and appeal.

• Representatives need timelines, meeting records, and communication logs.

4. Assessing Risk and Strategy

• Labour disputes carry reputational, financial, and operational risks.

• Accurate information enables sound advice, risk mitigation, and strategic positioning.

5. Ensuring Legal Compliance

• Misrepresentation or omission of facts can lead to adverse rulings and reputational damage.

• Full disclosure ensures alignment with legal standards and precedents.

Labour Matters That Require Rigorous Documentation

Labour Matter	Key Documentation Required
Consultation	Meeting notes, alternatives explored, employee input
Verbal Warning	Date, nature of misconduct, confirmation of discussion
Written Warning	Formal letter, rule breached, employee acknowledgment
Final Written Warning	Clear escalation, prior warnings, procedural fairness
Dismissal	Hearing minutes, evidence of misconduct/incapacity, procedural steps followed
Retrenchments (Sec. 189)	Notices, consultation records, selection criteria, severance calculations
Section 73A Monies Owing	Payslips, leave balances, notice pay, severance pay, employment contract
Other Labour Disputes	Contracts, grievance records, performance reviews, communication logs

The Employer’s Duty: Equip Your Representative

Think of your representative as your legal strategist. To perform effectively, they need:

• Complete documentation - Contracts, disciplinary codes, warning letters, minutes of hearings.

• Contextual clarity - Background to the dispute, prior incidents, aggravating factors.

• Consistency - Internal records and witness accounts must align.

• Transparency - Disclose all relevant facts, even those that may reflect poorly on the employer.

Practical Checklist for Employers

1. Essential Documentation

• Signed employment contract

• Clear job description

• Disciplinary rules explained during onboarding

• A complete record of prior warnings or performance issues

• Copies of all relevant communications (letters, WhatsApp, emails)

2. Fair Process Made Simple

• Notify employee of disciplinary meetings

• Hold a fair hearing and take notes

• Communicate outcome respectfully

• Offer appeal process

3. Proving Fairness

• Identify the broken rule and its importance

• Show the rule was known and consistently applied

• Document investigations or fact-finding

4. Supporting Your Representative

• Share a clear timeline of events

• Provide all relevant documents and messages

• Be honest about gaps or mistakes

• Seek advice early

5. Risk Awareness

• Understand the LRA and BCEA basics

• Avoid dismissals without valid reason and fair process

• Keep records to protect your business

• Treat employees with dignity to reduce conflict

Once a dismissal is established, the burden of proof shifts decisively onto the employer, not only to justify the termination, but to demonstrate procedural and substantive fairness across all dimensions of the employment relationship.

This principle extends beyond dismissals to encompass a wide range of labour disputes, including but not limited to claims of unfair labour practices, unfair discrimination, breaches of collective agreements, unilateral changes to terms and conditions of employment, disputes over severance pay, and violations of the right to freedom of association. It also includes matters arising under Section 73A of the Basic Conditions of Employment Act, where employees seek outstanding monies owed.

In each of these cases, the employer’s ability to defend their position hinges on the accuracy, relevance, and completeness of the information provided to their representative. Whether appearing before the CCMA, a Bargaining Council, or Labour Court, your representative must be equipped with a full and transparent account of events, supported by credible documentation and consistent internal records.

Employers who embrace transparency and prepare diligently are not only more likely to succeed in dispute resolution, but they also reinforce a workplace culture rooted in fairness, accountability, and respect for employee rights.