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A case of serious misconduct may also amount to a criminal offence. Does the employer have to wait until the disciplinary proceedings have run their course before laying a criminal charge? And if the employer decides to lay a criminal charge, should the disciplinary proceedings be halted pending the finalisation of the criminal case?

These questions were addressed in the Labour Court case of Ramthlakgwe vs Modimolle-Mookgopong Local Municipality and another (2023), where the head of the Project Management Unit faced charges of serious misconduct. Included in the disciplinary charges were two charges of fraud/financial misconduct in connection with payments that had been made to certain service providers.

Prior to the commencement of disciplinary proceedings, it became apparent that the municipality had laid criminal charges with the South African Police Services in respect of some of the charges that the applicant had to answer to at the disciplinary hearing.

Constitutional rights?

The employee approached the Court to halt the disciplinary proceedings on the basis that the laying of criminal charges against him compromised his constitutional right to a fair trial as provided for in section 35(3)(h) of the Constitution, and that it could also compromise his right to remain silent in the event of an arrest or detention provided for in section 35(1)(a) of the Constitution. What does this mean?

In simple terms, the employee’s first concern was that the evidence he might give at the disciplinary hearing could be used against him at the criminal trial. His second concern was that if he remained silent at the disciplinary hearing to avoid giving self-incriminatory evidence, it would be unfair because the outcome of the disciplinary hearing would be decided without him having defended himself.

The Court’s reasoning

The Court acknowledged the tension between the right of employers to discipline their employees and the right of employees not to give self-incriminatory evidence. However, after an interesting analysis of the law (which we will not elaborate on in this article), the Court concluded that there was no basis to stop the disciplinary proceedings. According to the Court, it remained the employee’s own choice as to which rights he wanted to assert and which rights he was prepared to forego or compromise in these circumstances.

The Court summarised the situation as follows: “The employer has always had the right to maintain and enforce discipline at the workplace through a fair disciplinary process. This has never been seen to be in conflict with a situation in which the misconduct for which the employee is accused of at the workplace might also expose himself to criminal liability. The police, independently, have a duty to investigate criminal conduct regardless of who lays the criminal complaint. Even if the criminal complaint or charge is laid by an employer, that can never, in my view, stand in the way of that same employer subjecting the employee to a disciplinary process in the workplace.”

The Court found that the employee had not established any basis on which he deserved protection from the disciplinary hearing.

Abuse of court process

In considering the issue of who should bear the legal costs, the judge pointed out the absurd consequences of granting the employee the relief he was asking for. The judge was not impressed with the employee and his representatives’ reasoning that “for the duration of the criminal investigation that may take years to complete and indeed for the duration of the criminal trial, that is, if it ever gets off the ground, he should remain immune from disciplinary processes or be indemnified from being subjected to discipline at his workplace.

The Court added that the application was “tantamount to an abuse of court process by a person holding a managerial position, using court processes to prevent his employer from subjecting him to a disciplinary process under the guise of protecting his constitutional rights”. The employee was ordered to pay the employer’s costs on a scale as between attorney and client.

Practical implications for employers

If an employer commences with disciplinary proceedings against an employee and the transgression also amounts to a criminal offence, the employer is free to lay a criminal charge at any time – before, simultaneous with, or after the commencement of disciplinary proceedings. Unless the employee is arrested, there should be no need to delay the disciplinary proceedings.

Jan Truter for

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