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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?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.
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