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A plea bargain with a deviant employee

May 2016

South Africa

A plea bargain with a deviant employee, is this permissible in the workplace?
The concept of a plea bargain arises from the criminal law context. A court once described plea bargaining as a "plea negotiation". Simplistically, in criminal law it is a procedure in which the accused exchanges a plea of guilty for a concession by the court or the prosecution. The concession may include the retraction of certain charges, the acceptance of a plea of guilty to a lesser charge or the withholding of a request for a specific, unfavourable sentence.

In the as yet unreported Labour Court decision of MEC: Department of Health, ECP v PHSDSBC and Others (PR63/14) (16 March 2016), Witcher J held correctly in my respectful view, that “there is no reason why it should not be adapted and applied in the labour law context, since plea bargaining is a recognised method of obtaining evidence of wrong-doing". The principle had not received judicial endorsement in the context of labour law prior to this decision. However, the practice has in our experience been applied over a long period of time in disciplinary processes by employers for good reason. In my view, following this welcomed decision it will now find wider application.

The Labour Court endorsed the concept of plea bargaining in the context of a consistency issue in the MEC: Department of Health matter. The case concerned misconduct perpetrated by eight employees who were managers of the emergency medical services (EMS) directorate, of the Eastern Cape Department of Health. The employees in question misused an aircraft and irregularly applied EMS sponsorship to travel to a soccer match. After the fact, certain of the employees later met and colluded to falsely misrepresent that the trip had been for official business purposes. Sadly, yet another example of the unfortunate state of affairs in the public sector and even worse in a struggling province.

Five out of the eight employees were dismissed. One of the eight resigned before being charged with misconduct, another was given a final written warning but not dismissed. A third was offered a plea bargain in terms of which he would plead guilty at the disciplinary hearing and testify against his remaining colleagues, all in exchange for a final written warning and two months’ unpaid suspension, instead of dismissal.

The five dismissed employees referred their dispute and the commissioner held that their dismissals were substantively unfair because of inconsistency.

The employer applied to review the award. The review focused on whether the employer had been inconsistent in its application of sanction. The Labour Court applied the settled test on inconsistency and held that the commissioner acted unreasonably in ruling that the employer was unfairly inconsistent in its discipline. I am not going to review the inconsistency comparators but focus on the plea bargain. I have set out a very brief summary of the facts and the law for context. 

In the case of the employee who was offered a plea bargain with the purpose of the employer obtaining evidence against the co-accused, the Labour Court held that “this, on its own, does not constitute inconsistent application of discipline”. A lesser sanction was necessary to strike a compromise and obtain the employee’s co-operation and testimony.

In addition, the employer’s selection of an individual wrongdoer from the group is not in itself unfair because the employer has a wide discretion and “the object of securing evidence to discipline employees who misconducted themselves would be completely defeated if every one of the employees involved in the misconduct were offered a plea bargain to testify against the others". As such the employer may consider factors such as:
  • the individual’s availability to testify;
  • their credibility;
  • their personal knowledge of the misconduct;
  • their co-operation during the investigation;
  • their attitude of remorse before the offer to enter into a plea bargain; and
  • their previous disciplinary record.
Furthermore the onus is on the party alleging unfairness to prove it by means of factors such as:
  • obvious favouritism;
  • situations where the evidence was not reasonably necessary for a guilty finding;
  • situations where an employee who committed gross misconduct is preferred and thus unfairly enabled, by means of the plea bargain, to use the other “less guilty” employees as his/her scapegoats; and
  • unfair racial, gender or other discrimination.
We have historically advised clients on the use of "plea bargains" in individual disciplinary processes, but this is also a useful tool to be kept in mind in cases of group misconduct.

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