By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The Labour Relations Act does not state whether the confession of an employee can justify his dismissal. However, the Criminal Procedures Act does specifically rule out such confessions. It is left to case law to decide such matters.
In the case of SACCAWU obo Dlabantu vs OK Bazaars (Contemporary labour Law Vol. 13 No. 11) a group of employees confessed in front of a video camera that they had consumed cool drinks and sweets belonging to the employer. Although the employees were adamant that they had been coerced into making these confessions they were fired for misappropriating the employer’s property.
At the CCMA the arbitrator found that the dismissals were unfair and reinstated the employees. This was because the employees were found guilty on the grounds of their confessions alone and the employer was unable to explain why it failed to bring corroborating evidence that it had claimed to possess.
OK Bazaars took the arbitrator on review to the Labour Court in the case of OK Bazaars vs CCMA & Others (Contemporary labour Law Vol. 13 No. 11). The Court disagreed with the CCMA arbitrator’s approach and upheld the dismissals as fair because the arbitrator had inappropriately applied to a civil law situation the criminal law provision that there should be additional evidence to the confession, and the arbitrator failed to apply the principle that the confession need only be proved valid on the balance of probabilities.
It is also important to note that a confession does not, on its own, constitute a plea of guilty. In the case of Assmang vs Martin (Lex Info 6 June 2025. Labour Court case number JR 03/2023) Martin was fired after confessing that he had given two of his colleagues a lift. He was later dismissed as an accessory to a crime based on the allegation that the two colleagues had stolen items from the employer and that he had provided the getaway car.
The arbitrator found the dismissal to be unfair because the employer had neither proved that Martin had been aware of a theft nor that a theft had even been committed. On review the employer claimed that the arbitrator had committed an irregularity but failed to prove this claim. The Court therefore upheld the arbitration award and confirmed the order for Martin to be reinstated.
This case is peculiar because:
- The employee had been dismissed based on a confession that he had given colleagues a lift, something that had constituted neither a crime nor workplace misconduct;
- The employer was aware that there was no proof that any crime had been committed;
- Despite the above, the employer both opposed the arbitration application and applied for a review to the Labour Court when it lost;
- The employer was represented by an advocate who had been instructed by a very well-known firm of attorneys.
While, in labour law it is sometimes possible to succeed with a dismissal based on a confession, the confession would need to be to a serous offence and must not have been coerced. Furthermore, the employer needs to prove that the alleged offence to which the employee confessed actually occurred.
Employers who fail to train their managers on the importance of complying with labour law are likely to meet the same fate as the employer in the case cited above.
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