Let's look at the recent judgment in the matter of Brauns and Others v Wilkes N.O and Others (JA 47/22) [2024] ZALAC 1; [2024] 4 BLLR 365 (LAC) where an employee challenged their dismissals for dishonesty relating to overtime claims.
Background
In Brauns and Others v Wilkes N.O and Others an employee, Mr Brauns, was employed by SAPS as a financial clerk where his duties involved, among other things, the management of work and remuneration for work done on public holidays and coordinating and controlling the budget and financial expenditure at the police station.
It was alleged that he misrepresented that he and the two other appellants (being his wife and sister-in-law) were entitled to overtime payments, knowing that they were not entitled to such payments. In turn, his wife and sister-in-law were alleged to have defrauded and prejudiced the State by not revealing or informing the SAPS that they had received the overtime amounts that were not due to them.
All three employees were charged with fraud and with conspiring with each other to defraud the SAPS. They were dismissed by the SAPS. Their unfair dismissal claim at the Safety and Security Sectoral Bargaining Council was dismissed with the arbitrator finding their dismissals to be both substantively and procedurally fair.
They then lodged a review application at the Labour Court where the Labour Court dismissed the review application. They then appealed to the LAC.
One of the arguments made by the appellants was that Mr. Braun’s confession was rendered invalid because it was made before he had information relating to the disciplinary charges and had managed to consider the evidence. Let us have a look at the general requirements of a valid confession.
General requirements for a valid confession
In the context of labour disciplinary proceedings, a confession is an acknowledgment, on the part of an employee, of a fault, wrongdoing, or breach of a rule.
In a disciplinary matter, an employer who relies on a confession has the onus to prove that the confession was made and that it is valid. A confession is valid only if the employer can show that it is:
freely and voluntarily made without undue influence, coercion, or intimation from the employer or any other person; and
clear and unambiguous and that the employee understood the consequences of the confession.
Importantly, in labour matters, a confession does not amount to a plea of guilty on the part of the employee, and an employer cannot dismiss an employee based solely on a confession. Even where there is a valid confession, an employer is still required to follow a fair procedure and determine if there is a substantive reason to terminate the employment relationship.
The question of whether a confession may be rendered invalid based on fear of criminal prosecution depends on the circumstances of each case. A confession in these circumstances may be considered involuntary or influenced by a promise or threat and therefore, inadmissible, or unreliable. But this will not be the case where confession is made willingly and corroborated.
Merits and outcome of the case
In evidence, it was common cause that the employees received the unauthorised payments and that they did not work the overtime for which they were paid. The payments were made using other employees’ access credentials to the SAPS payment system without these employees’ knowledge. It was also common cause that Mr Brauns made a confession about his fraudulent conduct before a magistrate.
The charges of misconduct against Mr Braun were based on the evidence gathered by the SAPS, including the confession. A confession generally forms part of the investigation into an employee’s misconduct; it is not made by first finding out what information the employer has.
Further, while a confession can inform the charges proffered against an employee, it is not the only factor determining the outcome of disciplinary proceedings. An employee who has confessed to an offense could still challenge the confession itself, including its reliability, at the disciplinary hearing or present evidence and argument to prove their innocence or to mitigate the severity of the sanction.
Considering the evidence, the Court in this case found Mr Braun’s confession to be valid. It was made before a completely independent magistrate, who enquired into the voluntary nature of the statement and there was no indication that the statement was not voluntary or made under duress.
Further, the magistrate was called as a witness at the arbitration to confirm the contents of the documented statement. The confession was accordingly admissible as evidence.
Both the Labour Court and LAC were satisfied that the arbitrator had considered the evidence of the confession, as well as the other evidence presented by the SAPS, in reaching the decision that the misconduct had been committed and that the dismissals were fair. The appeal was accordingly dismissed.
Conclusion
While a valid confession by an employee to acts of misconduct can be considered by an employer, the confession cannot, on its own, justify an employee’s dismissal. An employer is still required to follow a fair procedure and show that dismissal is an appropriate sanction in the circumstances of the case.
This case is noteworthy for employers, as it provides a useful discussion of the law on employee confessions in the context of disciplinary matters.
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