Contemporary

Labour Law
Vol 13 No 11 June 2004

Employee confessions
Can the employer dismiss on the basis of a confession alone?

by Carl Mischke

T
he starting point for disciplinary of proceedings, the temptation of importing
proceedings is for the employer to principles from criminal procedure becomes
prove, on a balance of probabilities, almost too great to resist.
that the employee breached a workplace rule
In the criminal law context a distinction is
or a rule relevant to the workplace. In some
drawn, for various purposes, between
cases, significant amounts of time are devoted
“confessions” on the one hand and
to the hearing of witnesses, the presentation
“admissions” on the other hand. In the
of documents and cross-examination — all
context of disciplinary proceedings, this
for the purpose of enabling the chairperson
distinction is not relevant. It is also not a
of the disciplinary hearing to decide whether
distinction drawn by arbitrators. For the
or not the misconduct has been proven. What
purposes disciplinary proceedings, the
happens, however, if an employee confesses
essential element of a confession is the
to the misconduct with which he or she has
acknowledgement, on the part of an
been charged? Does this mean that the
employee, of a fault, wrongdoing or breach
employer need no longer call witnesses and
of a rule. An employee may, for example,
produce the documentary proof it may have
confess to having removed certain items from
worked for months to compile? Should an
the employer’s premises or consumed some
employee who confesses be given an
of the employer’s stock. It remains important,
opportunity to still call witnesses?
however, to distinguish between a confession,
The answers to these questions relate to the on the one hand, and a plea of guilty on the
view one takes of disciplinary proceedings other hand. A confession, in the context of
against employees: if these proceedings are misconduct in the workplace is a statement,
seen as being formal, almost criminal types often (but not always) in writing in which

Inside....
• The onus of proof in cases of discrimination and automatically
unfair dismissal. p86

• Contractual protection and unfair dismissal: an update. p89

Managing Editor : P A K Le Roux Published by Gavin Brown & Associates

Contributing Editor : Carl Mischke Box 31380 Tokai 7966
Hon. Consulting Editor : A.A. Landman Tel : 021 788-5560 Fax: 021 788-1811
Contemporary Labour Law Vol 13 No 11 June 2004

the employee charged with misconduct acknowledges employees’ confessions were free and voluntary
certain events or omissions. An employee will usually confessions; if they were not freely and voluntarily
confess to certain acts, events or omissions during the made, the question was whether they had any value
course of the pre-hearing investigation by the employer. whatsoever. The employees claimed that they had been
An employee may plead guilty at the outset of a physically assaulted and threatened with violence if they
disciplinary hearing, when asked how he or she failed to cooperate in making the confessions.
responds to the disciplinary charges brought against
For the CCMA commissioner, the criminal law
him or her. Even though both these acts represent some
provided an important starting point in considering these
form of admission or acknowledgement on the part of
issues:
the employee, there is a clear distinction between a
confession obtained by the employer during the course “In criminal law, a confession elicited by
of the misconduct investigation and an employee’s duress or other illegitimate means is not
subsequent plea. An employee may, for instance, make admissible as evidence against the person who
a confession as to certain events, only to plead not guilty made it. Although a distinction is generally
drawn between criminal law and labour law
to disciplinary charges.
as far as the burden of proof and the
Confessions and criminal law evaluation of evidence is concerned, I can see
no reason why the criminal law standard
Section 209 of the Criminal Procedure Act 51 of 1977 should not be invoked when it comes to the
provides that a person accused of a criminal offence assessment of the admissibility of confessions.
may be convicted on his or her own, single confession. All the considerations that have led to the
However, such confession must be confirmed in a evolution of the Judges’ Rules and other
material respect by other evidence. If the confession is precautions against abuse by police and other
not confirmed by other evidence, the offence must be interrogators apply equally in the employment
proven by evidence other than the confession. context. In the present case, the interrogators
professed that they were aware of, and claimed
The issue of whether an employee could be dismissed to have followed, the Judges’ Rules. It is not
for theft and solely on the basis of the employee’s necessary for the purposes of this award to
confession arose in SACCAWU obo Dlabantu & set out in detail the law relating to the
another v OK Bazaars [1999] 7 BALR 833 (CCMA). admissibility and assessment of the probative
The employer, responding to excessive stock theft, value of confessions. Suffice it to say that a
engaged a firm of private investigators, and one confession will not be admitted as evidence if,
employee was trapped selling the employer’s stock. on the probabilities, it appears that it was not
This employee then implicated some co-workers in the made freely and voluntarily or that the person
stock theft, and all these implicated employees were making it did not understand its implications.
A confession will not be deemed to have been
summoned to the manager’s office. Some denied any
freely and voluntarily made if the person
involvement; others admitted (in front of a video-
making it was threatened or misled in any
camera) that they had consumed sweets and cool drinks
way.” (at 837)
without paying for them. The employees were charged
with misappropriating the employer’s property, and The CCMA commissioner also held that while the
dismissed after disciplinary hearings and an appeal were employees admitted to conduct that infringed the
held. The decision to dismiss the employees was made employer’s disciplinary code, a confession was not the
solely on the basis of their video-recorded confessions. same as a plea of guilty — a confession only serves as
evidence that a disciplinary offence had been committed.
In the disciplinary hearings, the subsequent appeals Because the employees denied, at the disciplinary
and in the arbitration hearing, the employees claimed hearing and the appeal, that they were guilty of any
that they had been forced to make the confessions; they misconduct, the employer was still obliged to satisfy
denied that they had stolen anything from the employer. itself that the employees were guilty of misconduct.
Much of the evidence presented at the arbitration
hearing was devoted to the question whether the The employer failed to do this: the only issue considered
at the disciplinary hearing was whether the employees
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 Contemporary Labour Law Vol 13 No 11 June 2004

"..the importation of the requirement that there should be extraneous

evidence of the commission of a crime, and with the commissioner’s
modification, that it be by the employee concerned, has no legal basis or
rationale in labour law"
OK Bazaars v Commission for CCMA & Others (2000) 21 ILJ 1188 (LC)

had been put under duress to make the confessions. a disciplinary tribunal to be convinced of an
Once it was found that there was no duress, no further infraction on a balance of probabilities is
enquiry was made and the employees were found guilty. accordingly displaced. This amounts to a
It was relevant, found the commissioner, that the gross irregularity. I, however, do not wish to
employer did not consider the circumstances in which be understood to be saying that the trier of
the statements had been made, the weight that should fact should not be alert and alive to measures
and stratagems which could be used to
be attached to the confessions, or even the nature, the
influence the voluntariness of a confession
timing or the circumstances of the offences disclosed
even in a civil law situation. But a lesser
by the employees in their confessions.
standard of proof is required in disciplinary
In line with criminal law and procedure and the fact enquiries than in a criminal court.
that in criminal proceedings, a court cannot convict an Secondly, the importation of the requirement
accused on the basis of a confession alone, the arbitrator that there should be extraneous evidence of
considered relevant the fact that the employer could the commission of a crime, and with the
commissioner’s modification that it be by the
not explain why it did not produce the corroborating
employee concerned, has no legal basis or
evidence it claimed it had (the employer claimed it had
rationale in labour law. It places an
evidence of the employee who had been entrapped in
unnecessary obstacle in the proceedings and
the first place). This meant that the presiding officers
is not one which is countenanced at civil law.
of the disciplinary hearing and the appeal hearing could It consequently constitutes a gross irregularity.
not have come to a ‘considered conclusion’ about the It follows that if a confession is made
nature or the gravity of the offences with which the voluntarily and shows the infraction of a
employees had been charged. The employees were disciplinary code or a breach of contract, it
reinstated. is, in the absence of some other satisfactory
explanation by the employee concerned,
The employer approached the Labour Court for an
sufficient to prove his or her misconduct.” (at
order reviewing and setting aside the CCMA arbitration 1191)
award. In OK Bazaars (A Division of Shoprite
Checkers) v Commission for Conciliation, Mediation The Labour Court not only set aside the arbitration
and Arbitration & Others (2000) 21 ILJ 1188 (LC). award, but held that the commissioner should have come
The Labour Court disapproved of the CCMA to the conclusion that the employees were guilty of
commissioner’s approach: theft. In view of the seriousness of theft, even in the
case of a first offence, the Labour Court upheld the
“The commissioner committed a gross
dismissal of the employees.
irregularity by knowingly importing
procedural safeguards, regarding the Considering and applying the rules of criminal law and
admissibility of a confession in the criminal criminal procedure in the context of confessions remains
courts, into a labour relations situation. Not a feature of arbitration awards on this point. In CWU
only does he do this, but he also imports the obo Waterboer v South African Post Office [2002]
onus of proving a confession on a test 9 BALR 921 (CCMA) the employee was dismissed
applicable to criminal proceedings, namely on the basis that he had divulged confidential
that the confession must be proved beyond
information about the contents and whereabouts of a
reasonable doubt. The civil test which requires
mailbag, this information being used to plan and execute

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 Contemporary Labour Law Vol 13 No 11 June 2004

a burglary at premises of the employer. Five bank against the employee by the employer was insufficient
parcels containing about R500 000 were stolen. The to draw the inference that the employee was the inside
employee was found guilty and dismissed by the operator in the burglary.
employer.
The CCMA commissioner does not refer to the decision
There was no direct evidence of the employee’s of the Labour Court in the OK Bazaars case, and again,
involvement and misconduct; the employer relied on it seems, is quick to rely on the provisions of criminal
circumstantial evidence only, and the CCMA procedure to exclude evidence (and, it could be argued,
commissioner had to work with inferences. One of the important evidence) against the employee. It seems that
issues that arose was the fact that a confession had when it comes to confessions and their value in
been made (by a third party) before a Magistrate, and disciplinary proceedings against employees, the rules
the effect of this confession was that the employee was of criminal procedure still play an inordinately
indeed the “insider” who provided the information as important role in arbitration proceedings, almost in spite
to the layout of the employer’s premises, how access of the tenor and approach of the Labour Court’s
could be obtained to these premises and the mailbags decision.
in question.
However, if an employee’s confession implicates
The CCMA commissioner came to the conclusion that another, clearly, the matter becomes more complex. In
this confession implicating the employee was not Softex Mattress (Pty) Ltd v PPWAWU & others
admissible at all. He based this conclusion on s 219 of [2000] 12 BLLR 1402 (LAC), for instance, an
the Criminal Procedure Act, which simply states that employee had been accused of theft and dismissed on
no confession made by any person shall be admissible the basis of the allegation of another employee who
as evidence against another person: had confessed to theft. The employee who had made
“Although this arbitration is not a criminal the confession (and the allegation implicating the other)
matter I am of the opinion that the exact same had not testified at the disciplinary enquiry, and the
principles will be applicable in this arbitration arbitrator held that there was insufficient evidence to
as far as the probative value of Mr Visagie’s link the applicant employee to the theft. The Labour
confession is concerned. In short the Appeal Court approved the decision of the Labour
confession of Mr Visagie was not at all Court not to review and set aside the judgment:
admissible as evidence against the applicant. “Essentially, the arbitrator found that the
Although this might look like a procedural evidence upon which the appellant acted had
defect, I am of the opinion as already indicated the inherent potential to be false for two
above, that the admission of Mr Visagie’s reasons, and in addition was improbable, and
confession, bearing in mind the facts of this thus ought not fairly to have been relied upon
matter, should be considered under in order to found a decision to dismiss,
substantive fairness.” (at 932) bearing in mind the employee’s denial. The
The commissioner repeatedly emphasised that the learned judge found that those reasons
matter before him was not a criminal matter and that provided a rationally justifiable basis upon
the civil standard of proof (a balance of probabilities) which to reach that conclusion, and I do not
applied to the case before him. However, on the think that his finding can be faulted.” (at
evidence, the commissioner came to the conclusion that 1409)
the employer had failed to prove on a balance of Confessions as evidence
probabilities that it was indeed the employee who had
divulged relating to the mail bags, and therefore he Even though the issue of employee confessions is often
held that the dismissal on this basis was substantively glossed over or discussed in little detail, it is undeniable
unfair. that the issue is of some practical importance and
whether or not a confession was made, was made freely
In reaching this conclusion, the arbitrator expressly and voluntarily, and the weight to be attached to the
disregarded the confession made before the Magistrate, employee’s confession are questions that have arisen
and found that the other circumstantial evidence brought in a number of CCMA and other arbitrations.

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Contemporary Labour Law Vol 13 No 11 June 2004

It seems that one perennial issue in the context of OK Bazaars case, one were to ask when and how an
employee confessions is that of duress or whether the employee confession can and should be used, the real
employer had placed undue pressure on the employee question that emerges relates to the value and the weight
to make the confession. Naturally, a confession which of the employee’s confession.
the employee has been compelled to make (by threats
Like any statement or document on which an employer
of violence, for example) is hardly worth the paper it is
seeks to rely in disciplinary proceedings against an
written upon. But the mere fact that the employer
employee, a confession made voluntarily and freely by
indicates to the employee that he or she may be subject
an employee is a piece of evidence against the employee.
to criminal prosecution will not necessarily suffice to
It is, in the context of disciplinary proceedings, no
warrant a conclusion that the employee had been placed
different than written statements or other documents
under duress. In NUM v CSO Valuations (Pty) Ltd
presented and relied on by the employer (these other
[1999] 2 BALR 168 (CCMA) the commissioner came
statements and documents also, of course, technically
to the conclusion that in a situation where it had been
constitute hearsay evidence).
indicated to the employee that the employer reserved
the right to institute criminal action against the There can be no doubting the importance of an
employee, this indication in itself did not constitute employee’s confession. If an employee confesses to
duress and did not render the employee’s written certain events or facts, this constitutes evidence as to
confession worthless. the occurrence of these events or facts. But it is also
The circumstances in which the confession was made important to recognise the limitation inherent in a
by the employee and the manner in which the confession confession as to events or facts. Whether the events or
is made remain relevant concerns. In Western Deep facts to which the employee confesses justify a finding
Levels West Mine v NUM obo Xhanywa [1999] 8 of guilt is, of course, another matter entirely. An
BALR 1003 (IMSSA), for instance, the employee did employee may confess to removing certain items, for
not have a union representative present during the example, but whether that justifies a finding of guilty
course of an interview and the confession was not on charges of theft (as opposed to unauthorised
reduced to writing. For the arbitrator, this meant that possession of the employer’s property) depends on the
the onus of proving that the employee made the facts, other evidence presented (if any) and the
confession and that the confession was made inferences that can be drawn from the confession.
voluntarily, rested on the employer. The employee in Naturally, a confession does not answer the important
this case denied that he had made the confession, and question of whether dismissal is an appropriate sanction.
therefore the arbitrator was called to make a finding Gradually, it seems that arbitrators are now beginning
on credibility. There was no corroborating evidence to
prove the company’s allegation that the employee had
made a confession, and, on a balance of probabilities, Contemporary Labour Law
the arbitrator declined to attach any weight to the is published monthly from August to July
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The question must be asked, at this point, whether the
approach taken by arbitrators, an approach almost Subscription Enquiries :
invariably citing and relying on provisions of criminal
procedure, is the correct one. From the arbitration
awards mentioned above, it seems that in some cases, Tel : (021) 788-5560 Fax : (021) 788-1811
despite the pertinent decision of the Labour Court, e-mail : cll @ workplace.co.za
arbitrators and CCMA commissioners persist in Copyright held by the authors. No part of this
publication may be reproduced in any form
importing requirements from the Criminal Procedure
without the prior written consent of the
Act when faced with employee confessions. If, in line publishers.
with the tenor of the Labour Court’s decision in the

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Contemporary Labour Law Vol 13 No 11 June 2004

to impose less strict requirements as regards employers employees were beyond reproach:
relying on employee confessions. In National Union “The applicants admitted that the videotapes
of Mineworkers & others v RSA Geological were what they were purported to be, and that
Services (A division of De Beers Consolidated Mines they had uttered all the words recorded
Ltd) (2004) 25 ILJ 410 (ARB) the employer charged thereon. Each interview was recorded from
a number of employees with discarding certain types beginning to end. Each began with the
of samples, with damage to company property, with investigator requesting the suspect to confirm
misrepresenting their work rate so that they could they were the only persons in the room and
fraudulently claim incentive bonuses and/or gross that he or she had not consumed any substance
negligence for failing to exercise the degree of care that impaired his or her judgement. The
required of employees. Much of this award is devoted suspects were also asked whether they wished
to the interesting question of “derivative misconduct” to call representatives. After making their
(this is where employees possess information that would statements, the suspects were requested to
confirm that the camera had not been switched
enable their employer to identify specific wrongdoers,
off at any time. In both recordings, the
yet they fail to come forward and provide this
applicants confirmed that they were making
information when asked, thereby violating the trust on
the statements voluntarily, that they had not
which the employment relationship is based). There been subject to any duress, that they did not
was no direct evidence against any of the employees, require representation, and that they were of
but one of them had made a confession. It was neither sound and sober senses.” (at 834-5)
alleged nor proved that the confession was improperly
If an employee freely and voluntarily confesses to
obtained, and, on the basis of this confession, the
events, facts or omissions, such confession constitutes
arbitrator held that the employee was guilty of gross
important evidence for the purposes of disciplinary
misconduct justifying his dismissal.
proceedings. It is not the same as pleading guilty to all
It may be prudent for an employer, when obtaining a charges, but if there is no reason to doubt the confession
confession from an employee, to take some steps to and there are no substantiated allegations that cast doubt
ensure the integrity of that confession. In SACCAWU on the free and voluntary nature, there appears no reason
obo Dlabantu & another v OK Bazaars (above), for why an employer should not rely on such a confession
example, the employer went to considerable lengths to in deciding the employee’s guilt — even in cases where
ensure that the video-taped confessions by the the confession is all the employer has.

The onus of proof in cases of discrimination and

automatically unfair dismissal

by Heather Irvine

A
number of recent cases have highlighted that cases, that the employer has engaged in differentiation
applicants who allege that they have been which amounts to discrimination.
dismissed for an automatically unfair reason,
• Automatically Unfair Dismissals
or who lodge a discrimination claim in terms of the
Employment Equity Act, 55 of 1998 (EEA), bear an Section 192 of the Labour Relations Act, 66 of 1995
onus to place facts before the court which establish (LRA) states that where an employee alleges an unfair
that the dismissal falls within the scope of an dismissal, the employer must show that that employee
automatically unfair dismissal, or, in discrimination was dismissed for a reason permitted by s188 of the
LRA.

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Contemporary Labour Law Vol 13 No 11 June 2004

Section 192 does not, however, apply to the situation corrective discipline, as required in terms of the Code
where an employee alleges that his or her dismissal of Good Practice found in Schedule 8 to the LRA.
was automatically unfair. In the case of alleged Jammy AJ dismissed this second claim, and noted that
automatically unfair dismissals in terms of s 187 the the sole issue in respect of which the Labour Court had
evidentiary burden is slightly different. jurisdiction was whether or not the applicant’s dismissal
was automatically unfair as envisaged in s 187(1) of
Section 187 sets out the circumstances in which an
the LRA. The only question to be determined was
employee’s dismissal will be considered to be
accordingly whether or not the applicant’s pregnancy,
automatically unfair, including cases where the reason
and her consequent absence, was the reason for her
for the dismissal is, for example,
dismissal, or whether her dismissal was based on the
“the employee’s pregnancy, intended instances of alleged gross negligence, derelictions of
pregnancy, or any reason related to her duty and breaches of good faith relied upon by the
pregnancy”, or respondent.
“that the employer unfairly discriminated In deciding this question, Jammy AJ referred to the
against an employee, directly or indirectly, on
Labour Appeal Court’s dictum in SA Chemical
any arbitrary ground, including, but not
Workers’ Union and others v Afrox Limited (1999)
limited to, race, gender, sex, ethnic or social
20 ILJ 1718, a case dealing with whether or not the
origin, colour, sexual orientation, age,
reason for the dismissal of the appellants in that case
disability, religion, conscience, belief, political
opinion, culture, language, marital status or was their participation in a strike, or the operational
family responsibility” (see sections section requirements of their employer. In that case, the Labour
187(1)(e) and (f)). Appeal Court noted that the enquiry into the reason for
a dismissal is an objective one, and is essentially a
The recent case of Wardlaw v Supreme Mouldings
question of causation. The question to be answered is
(Pty) Limited (2004) 13 LC 8.29.1 confirms the
thus whether the dismissal would have occurred, were
principle that if an employee alleges that the dismissal
it not for the prohibited reason alleged by the employee.
was for a prohibited reason set out in s 187, the
If the answer is yes, then the dismissal was not
employee bears the responsibility of showing that the
automatically unfair.
employer was aware of the fact that prohibited the
dismissal. In this case, the applicant, the group financial Applying this test in the Wardlaw case, Jammy AJ
manager of the company, fell pregnant and went on concluded that :
maternity leave in May 2001. Upon her return to work “the applicant’s submission that the
in October 2001 she received a notice to attend a disciplinary action to which she was subjected
disciplinary inquiry to answer to a number of charges and her resultant dismissal were the
relating to her alleged gross negligence and dereliction consequence of a vindictive reaction by the
of her duty to produce proper financial records for the respondent to the fact of her pregnancy and
company and to attend to the filing of its VAT and the inconvenience of her absence in that
UIF returns. These charges related to an extended period regard at a time when the respondent was
of time, going back to September 2000, well before under severe administrative pressure, cannot
she took her maternity leave. Pursuant to this be sustained in the face of the detailed
disciplinary hearing, she was dismissed. allegations of negligence and incompetence
upon which the respondent is adamant that it
The applicant applied to the Labour Court in terms of was based”.
s 187(1)(e) and (f) of the LRA. She contended that the
He accordingly held that the applicant had failed to
reason for the respondent employer’s hostility towards
demonstrate that the reason for her dismissal was her
her, the disciplinary proceedings and ultimately the
pregnancy or any reason related thereto.
reason for her dismissal, was the fact that she had taken
maternity leave as a consequence of her pregnancy. The approach in this case accords with that adopted
She also alleged that her dismissal was unfair in so far by Landman J in the case of Mashava v Cuzen &
as her employer had failed to apply any form of Woods Attorneys (2000) 6 BLLR 691 (LC), in which

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Contemporary Labour Law Vol 13 No 11 June 2004

he accepted that the employee must not only make the grounds listed in s 187(1)(f), or an analogous ground
bare allegation that her dismissal was based on a which impacts on her human dignity, and then to set
prohibited reason set out in s187, but must also lead out sufficient facts to establish this (see also Aarons v
some evidence to prove, for example, that the employer University of Stellenbosch (2003) 7 BLLR 704 (LC)).
was aware that the employee was pregnant. He
approved of the dictum in the English case of Maund • Discrimination Claims in terms of the
v Penwith District Council [1984] ICR 143, in which Employment Equity Act
it was held that: Section 6(1) of the EEA provides that:
“it is not for the employee to prove the reason “No person may unfairly discriminate, directly
for his dismissal, but merely to produce or indirectly, against an employee, in any
evidence sufficient to raise the issue, or, to put employment policy or practice, on one or more
it another way, that raises some doubt about grounds, including race, gender, sex,
the reason for the dismissal. Once this pregnancy, marital status, family
evidentiary burden is discharged, the onus responsibility, ethnic or social origin, colour,
remains upon the employer to prove the reason sexual orientation, age, disability, religion,
for the dismissal” HIV status, conscience, belief, political
Our courts have adopted the same approach in cases opinion, culture, language and birth.”
where the reason for the dismissal is alleged to be Section 11 of the EEA then provides that:
discrimination in terms of s187(1)(f). In Mafomane v
“whenever unfair discrimination is alleged in
Rustenburg Platinum Mines Limited (2003) 10
terms of this Act, the employer against whom
BLLR 999 (LC) the applicant alleged that his dismissal the allegation is made must establish that it is
was automatically unfair because he had been fair.”
discriminated against on the
This specific provision means
basis of his race. Trengove AJ
that in all cases where
held that the employee bore the
discrimination is alleged, the onus
onus of proving that his "The applicant in such cases thus rests on the employer to show that
employer differentiated between
bears an onus to adduce facts it was fair. This provision was
employees by treating him less
supporting the existence of clearly enacted in the light of the
favourably than other
fact that, in the employment
employees, and further that this differentiation by the employer on
situation, it is difficult for
differentiation constituted either a listed or analogous ground. employees to prove a case against
discrimination insofar as it was
Only then will the presumption of an employer with superior
based on race. Only once these
unfairness place the onus on the resources.
facts were established, was the
discrimination presumed to be employer to demonstrate that the However, notwithstanding this
unfair, unless the employer provision, it appears that an
discrimination was fair."
proved that it was not unfair. evidentiary burden to adduce
The applicant in such cases thus See Mafomane v Rustenburg Platinum facts to support a claim of
bears an onus to adduce facts Mines Ltd discrimination will still rest on the
supporting the existence of applicant in cases in which
differentiation by the employer discrimination is alleged in terms
on either a listed or analogous of the EEA.
ground. Only then will the presumption of unfairness
place the onus on the employer to demonstrate that the This principle was recognised in a number of cases in
discrimination was fair. A mere allegation of some sort relation to Schedule 7 of the LRA, brought prior to the
of differentiation or persecution will not suffice – an enactment of the EEA. In Transport and General
applicant is expected to allege that the different Workers’ Union v Bayete Security Holdings [1999]
treatment experienced by her is based on one of the 4 BLLR 401 (LC), it was held that a bald averment
that there has been discrimination is not sufficient to

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Contemporary Labour Law Vol 13 No 11 June 2004

shift the onus to the respondent to prove the fairness of allegation of discrimination by the applicant will not
the alleged discrimination. Only if the applicant has suffice. However, once a prima facie case of
established this discrimination, does the onus pass to discrimination is made out, an adverse inference can
the respondent to establish either that no discrimination be drawn against the respondent if it does not offer an
had taken place, or alternatively, that such explanation.
discrimination was fair within the meaning of s 6(2).
These cases emphasise that it is important for
Similarly, in Ntai & others v South African Breweries
employees alleging either an automatically unfair
Ltd [2001] 2 BLLR 186 (LC), it was accepted that in
dismissal in terms of the LRA, or discrimination in
a claim based on alleged unfair discrimination, the onus
terms of the EEA, to ensure that they place sufficient
rests on the applicant to prove discrimination on a
detailed facts before the court to support their allegation
balance of probabilities. Only if discrimination is proved
of dismissal for a prohibited reason, such as pregnancy
does the onus shift to the respondent to prove that the
or discrimination, or discrimination on one of the listed
discrimination is fair. A mere allegation of
or analogous grounds.
discrimination by the applicant will not suffice. A mere

Contracts of employment and unfair

dismissal : an update
by PAK le Roux

T
he failure of common law contract principles may lead to the courts accepting that an implied term
to provide protection against unfair dismissal not to be unfairly dismissed should be incorporated
is primarily attributable to the fact that a into contracts of employment. In other words, the law
contract of employment, absent a provision to the would require that a term be read into every contract
contrary in the contract itself, can be terminated by the of employment in accordance with which an employee
giving of notice. Provided that proper notice is given, could not be unfairly dismissed.
the contract is terminated lawfully irrespective of the
In Denel (Pty) Ltd v Vorster (Unreported 13/2003)
reason for the termination, and irrespective of whether
the terms of an employer disciplinary policy were
a fair procedure was followed. Of course, it is possible
accepted to have been incorporated into the contract
that an employer and an employee may agree to a
of employment of the employee concerned, thus
provision in the contract of employment in terms of
providing contractual protection against a procedurally
which an employee is granted protection against unfair
unfair dismissal. In Highveld District Council v
dismissal, but given the superior bargaining power of
CCMA & others [2002] 12 BLLR 1158 (LAC) the
the employer, this is unlikely to occur. This protection
Labour Appeal Court was prepared to accept that the
had to be derived from legislation.
contractual right not to be unfairly dismissed could be
In CLL Vol 13 no 9, Carl Mischke discussed various derived from a collective agreement, the provisions of
decisions, emanating primarily from the High Court, which were incorporated into the contract of
in which the Courts considered whether common law employment.
contract principles could not be adapted to provide
The debate has now been carried one step further in
such protection in the absence of an employer and an
the recent decision of the High Court in Harper v
employee expressly agreeing to provide it.
Morgan Guarantee Trust Company of New York,
The decision of the Supreme Court of Appeal in Fedlife Johannesburg & another 2004 (3) SA 253 (W).
Assurance Ltd v Wolfaardt [2001] 12 BLLR The employee in this case was dismissed for allegedly
1301(SCA) raised the possibility (without deciding the providing certain information to the Reserve Bank
issue) that the constitutional right to fair labour practices relating to foreign exchange transactions her employer
had undertaken on behalf of a client.

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The obvious course of action open to the employee if may be so unfair (the unfairness is so gross) that the
she had wished to challenge her dismissal would have Court will not enforce that provision of the contract on
been to institute a claim for unfair dismissal. However, the basis that it would be contrary to public policy to
she chose to institute a claim in the High Court for do so.
damages based on an alleged breach of contract. Here
More importantly, what is considered to be fair may
she faced the problem that her employer had terminated
be relevant in determining whether a tacit term
her contract of employment by giving the required
enforcing some sort of fair treatment should be
period of notice of termination.
incorporated into a contract. A tacit term is a term
To overcome this obstacle she alleged that disciplinary which the parties have not expressly included in the
proceedings had been taken against her by her employer contract but which will be deemed to be part of the
in an attempt to prevent further investigations into the contract on the basis that it would have been included
leak being made by the client. She argued that her therein if the parties had considered the matter. In other
employer had taken this step despite knowing full well words, agreement on the term is imputed to the parties
that she had not leaked the information. The termination on the basis that they would have agreed to it being
of employment took place for an ulterior purpose, was part of the contract if they had considered the issue.
not bona fide, and therefore constituted an unlawful Whether such a tacit term will be held to form part of
repudiation of her contract. This approach appears to the contract will depend, inter alia, on the express terms
have been based on the legal argument that the contract of the contract and the circumstances in which the
of employment contains a term implied in law to the agreement was entered into.
effect that the employment relationship is one of
The Court expressed the view that, in many cases, the
“mutual trust, confidence and good faith”. This, in turn,
concept of a tacit term could achieve the same “fair”
means that when a party elects to do something which
outcome as a legally implied duty to act in good faith.
that party has the right to do in terms of the contract
The tacit term approach is “pliable” and can cope with
(eg terminate a contract by giving the required period
actual fairness in the “specific situation”.
of notice) that party should exercise that power fairly.
The Court found that the employee had not made out a
The defendant employer then raised an exception against
legal basis for an implied or tacit term and the
this plea on the basis that it did not disclose a cause of
employer’s exception was upheld. Nevertheless, the
action – there was no legal basis for such a claim.
explicit rejection of a term implied by law is interesting
The Court’s approach to these arguments involves and it is not clear whether the Court was referred to
difficult legal issues and the Court’s reasoning is the Wolfaard decision in this regard.
difficult to follow, but the following is a summary of
It also seems that the Court was prepared to accept
what appears to be the most important points made.
fairly widely stated tacit terms. For example, it stated
The Court was not prepared to accept that the law that the contract would normally contain a tacit term
should imply a term as contended for by the applicant to the effect that the one party would not “harm the
into contracts of employment. Considerations of fairness other party or his interests.” The problem with the
do not require that an implied duty to act in good faith “tacit term” approach is, however, that a tacit term
be incorporated by law into the contract of employment. requiring some form of fair treatment cannot be
Such a term could lead to legal uncertainty and is not incorporated into a contract where the express terms
required by “the Constitution or otherwise”. of the contract contradict such a term. This may limit
its application, despite the Court apparently envisaging
However, the Court went on to say that this does not
a significant role for such terms.
mean that fairness has no role to play in the contract of
employment. For example, a provision in a contract

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