An employer cannot use a big fish to catch a small fish

April 1st, 2019
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Rinsa (Pty) Ltd t/a Ultra City Middleburg v National Union of Metalworkers of South Africa and Others (LC) (unreported case no JR545/15, 5-12-2018) (Nkutha-Nkontwana J)

This article considers the recent Labour Court (LC) case of Rinsa, which provides valuable insight into how employers ought to exercise their discretion when entering into ‘plea bargaining deals’ with employees.

Plea bargaining and employment law

The concept of plea-bargaining agreements is not new in South African jurisprudence. In North Western Dense Concrete CC and Another v Director of Public Prosecutions, Western Cape 2000 (2) SA 78 (CC) decision at 670c, Uijs AJ defined a plea bargain as being ‘the practice of relinquishing the right to go to trial in exchange for a reduction in charge and/or sentence.’ In the employment law context, this approach may be used by either party, for example when an employer offers one (or more) employees within a group of suspected wrongdoers a plea bargain to enable it to acquire evidence of wrongdoing within the group, in exchange for a lighter disciplinary sanction or no sanction whatsoever. Historically, plea bargaining has been largely used in the criminal justice system and assists in, among others, securing evidence and saving time and resources.

The Rinsa decision

When engaging in plea bargaining certain obligations are imposed on employers. The Rinsa case offers a valuable recent example in this regard.

Facts

The case dealt with a review application brought before the LC. The facts of the case are as follows: Mr Msiza was employed by Rinsa as a petrol attendant. He was charged and dismissed for misconduct relating to his alleged involvement in a fraudulent transaction. Ms Mnguni, another petrol attendant and witness for the employer, testified against Mr Msiza and implicated him in the fraudulent transaction. On the day of the alleged misconduct, a taxi and a truck filled diesel from a single pump in one continuous transaction. This process was facilitated by Ms Mnguni. The taxi driver paid cash to Ms Mnguni for the diesel, but the whole transaction was levied against the truck driver’s bank card, belonging to the truck owner. Ms Mnguni testified that she orchestrated the fraudulent transaction with Mr Msiza and shared the proceeds of the fraudulent transaction with him. Mr Msiza testified that he was not involved in the alleged fraudulent conduct and was merely assisting his colleague to pour fuel into the truck. Evidence in the form of video footage showed Mr Msiza assisting Ms Mnguni.

Applicable law

When making use of a plea bargain, the employer is required to observe certain principles. Although the employer has a wide and almost unfettered discretion in selecting the witness it wishes to use as part of its case, such discretion has to be exercised in a bona fide manner. The key issue, as observed in the case of Member of the Executive Council: Department of Health, Eastern Cape Province v Public Health and Social Development Sectoral Bargaining Council and Others [2016] 6 BLLR 621 (LC), is that the employer’s selection of the accomplice for plea bargaining should not be mala fides. The following examples were given in relation to when the decision to offer a plea deal might be unfairly exercised – ‘the evidence the witness gave was not reasonably necessary to secure a guilty finding against the accused employees; including because such evidence was readily available from other sources; an imbalance in the relative degree of culpability of the witness and the accused employees, such that the proverbial “big fish” was used to secure a guilty finding against the “little fish”; that the decision to conclude a plea agreement was induced by an improper motive such as obvious favouritism or capriciousness; and/or unfair racial, gender or other discrimination in favour of the accomplice witness or against the remaining accused employees’ (see para 38 to 42 of the Department of Health case).

The court’s findings

The LC found that there was a glaring imbalance in the comparative degree of blameworthiness between Ms Mnguni and Mr Msiza. Ms Mnguni was both the orchestrator and perpetrator of the misconduct while there was no hard or real evidence, which implicated Mr Msiza. The court viewed this case as nothing short of the proverbial ‘big fish’ being used to secure a guilty finding against the ‘little fish’. The court’s finding in this case affirms the decision in the Department of Health case, wherein the court held that an imbalance in the comparative degree of blameworthiness is one of the factors to be considered in determining whether the employer unfairly exercised its discretion. Accordingly, the LC held that the commissioner was correct in treating Ms Mnguni’s evidence with caution.

The court concurred with the commissioner’s assertion that Rinsa’s case hinged solely on Ms Mnguni’s evidence as the video footage did not prove that Mr Msiza participated in the fraudulent transaction. Ultimately, the LC confirmed the commissioner’s award, which was that the dismissal of Mr Msiza was substantively unfair.

Conclusion

This case underscores the principle that in the exercise of discretion by the employer in selecting who it wishes to use as part of its plea-bargaining deal, the discretion must be properly and fairly exercised, otherwise the decision may be regarded as unfair.

The case further confirmed that where there is an imbalance in the relative degree of culpability of the witness and the accused employees, such that the proverbial ‘big fish’ is being used to secure a guilty finding against the ‘little fish’, it may be found that the employer’s discretion was improperly exercised in awarding ‘the big fish’ a plea deal. As a result, such a witness’ evidence may be disregarded or treated with caution. In situations, such as the present, this could have serious consequences for an employer’s case and its ability to prove the fairness of an employee’s (namely, the ‘little fish’s’) dismissal.

Unathi Jukuda LLB (UWC) ND Marketing (CPUT) is a candidate legal practitioner at Werksmans Attorneys in Cape Town.

This article was first published in De Rebus in 2019 (April) DR 30.