WHICH PARTY HAS THE ONUS OF PROOF?

[Ivan Israelstam]

In the Labour Appeal Court case of Gauteng Department of Education vs Ntombela and Sibi (SAFLII 22 January 2025 Case no: JA141/2022) The Court overturned the finding of an arbitrator. The arbitrator had found the misconduct dismissals of the two employees to have been unfair. They had been fired for giving their persal passwords to a Mr Mothlang who had used them to make fraudulent payments to ghost employees over a period of two years.
The two employees testified that they had changed their persal passwords every month and denied having given their persal passwords to Mr Mothlang. The arbitrator accepted this and found that the dismissals had been unfair.
One of the key grounds for the appeal was that the two respondent employees had been unable to explain how Mr Mothlang had been able to access their persal accounts consistently over a period of two years. Based on this argument, the Court found in favour of the employer and ruled that the dismissals had been fair.
The Court’s decision to overturn the arbitrator’s decision gives rise to three questions: Firstly, why was the possibility that Mothlang could have hacked the persal passwords of the two employees not considered by the court? Secondly, and more importantly, does the law require employees to prove their innocence by explaining how a third party (Mothlang) could have obtained their persal passwords? Thirdly, based on the answers to the first two questions and on the legal provision that it is the employer that has the onus of proof, did the Court err in overturning the arbitrator’s finding of unfair dismissal?

[Anna Peal]

It is entirely possible that Mothlang could have hacked the Persal system. While we don’t know that he did, the fact that this was a possibility makes it possible that the two dismissed employees may not have been guilty. More importantly, even if they were guilty, it was the legal duty of the employer to prove their guilt. And finding them guilty because they had been unable to explain how Mothlang obtained their passwords is not an acceptable reason for a guilty verdict. Section 188 of the LRA clearly places the onus of proof on the employer. Furthermore, South Africa’s Constitution requires accused persons to be assumed innocent unless proven guilty. Therefore, the employees had no legal duty to prove themselves innocent by explaining how Mothlang could have obtained their passwords. This renders the Court’s decision in this case incorrect.

[Patrick Deale]

The LAC decision was correct to overturn the arbitrator’s ruling.

The common cause facts in the case were that Mothlang –
• Obtained the employees’ passwords – not just once, but repeatedly each time they changed them monthly over a two-year period .
• Used the updated passwords to log in to the employer’s payroll and human resources system.
• Used the access to the system to appoint ghost employees on the system.
• Processed a signed form appointing a ghost employee which he got from one of the employees.
• Fraudulently paid the ghost employees on the employer’s system.

With all these facts stacked up against them…the two employees could not explain how Mothlang obtained their passwords. The facts overwhelmingly point to their complicity in Mothlang’s fraudulent scheme. The collective weight of the facts (all undisputed) shifted the evidentiary burden onto the employees to prove it was improbable that they had shared their passwords with Mothlang. A task too far…!!

The LAC criticised the arbitrator for taking an over technical approach by dealing with the hearing as if it were a criminal trial. He ignored the compelling conclusion of guilt on the probabilities…the test for guilt in an employment setting. He instead found the employees not guilty because the employer “…were never charged in relation to the condition of their [passwords] but were charged for actual theft” but had charged them with “actual theft”.

[Ingrid Lewin]

Bearing in mind that the court here is dealing with circumstantial evidence, the question is: which of the two possible versions is the more probable: Mothlang hacked the employee’s passwords or the employees were involved.

The common cause facts alone showed that there was sufficient prima facie evidence that the employees were involved in the fraud.
• Their persal profiles were used
• Although they changed their passwords monthly, Mothlang continued to access their accounts
• The one employee signed a form appointing a ghost employee
• The fraud occurred in their functional area, using their access rights
• The fraud was sustained over a long period.
In deciding whether an employee is guilty or not, there are two types of burdens of proof. Firstly, there is the evidentiary burden which shifts between the parties as they present their evidence. In this case, the common cause facts alleviated the employer of its evidentiary burden because the evidence (albeit circumstantial) showed it was more probable that the employees were involved than the possibility of Mothlang having hacked their passwords.

The evidentiary burden then shifted to the employees to provide credible evidence to counter the evidence of the employer which they were unable to do.

• They could not explain how Mothlang repeatedly obtained their updated passwords.
• They could not explain why their profiles were used for the fraudulent appointments.
• They could not explain why one of them signed a form appointing a ghost employee.
• They could not explain why the fraud was concentrated in their unit and linked to their access rights.
Because there was no probable evidence to counter the common cause facts, the employer succeeded in discharging its overall burden of proving that the employees were guilty.

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