The right not to give self-incriminatory evidence during disciplinary proceedings in the workplace.
There are various forms of serious misconduct committed by employees in the workplace which also constitute criminal offences. Fraud, theft and assault are common examples. Where employees commit such misconduct, this may result in disciplinary and criminal proceedings being instituted against the employee by the employer and the State, respectively. But can the employee in such a situation invoke their right not to give self-incriminatory evidence to ensure that the disciplinary hearing is postponed pending the completion of the criminal proceedings? This was the question the Labour Court was recently required to answer in the case of Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another (2023) 44 ILJ 2297 (LC).
In that case, the applicant was employed by the Modimolle-Mookgopong Local Municipality as the Manager of the Procurement Management Unit. The applicant was charged by the municipality with various acts of serious misconduct, including fraud and financial misconduct. The applicant was given notice to attend a disciplinary hearing to answer to these charges. The municipality also laid criminal charges against the applicant with the SAPS. When the applicant became aware that criminal charges had been laid against him, he brought an urgent application in the Labour Court to postpone the disciplinary hearing pending the finalisation of any criminal proceedings relating to the criminal charges.
The applicant alleged that the laying of criminal charges against him compromised his constitutional right to a fair trial under section 35(3)(h) of the Constitution and his right to remain silent under section 35(1)(a) of the Constitution. The applicant contended that he would not be able to answer fully, or even at all, to the charges at the disciplinary hearing without compromising his right not to give self-incriminatory evidence. The alleged basis of this concern was that the evidence that the applicant may give at the disciplinary hearing could be used against him at the criminal trial in the event that he was criminally charged and prosecuted. The applicant also claimed that it would be difficult for him to testify freely at the disciplinary hearing due to the fear of giving self-incriminatory evidence which would in turn infringe his right to fair labour practices under section 23(1) of the Constitution. If the applicant did not testify at the disciplinary hearing, the charges would, he argued, be determined without him presenting a defence.
In deciding whether or not it would be appropriate for the Labour Court to interdict the disciplinary hearing, the court rightly determined that the main issue for consideration was whether an employer may be interdicted from starting or from proceeding with a disciplinary hearing against an employee where criminal charges have been laid or are under investigation or are pending before a criminal court in respect of the employee's conduct in the workplace. In determining this issue, the Labour Court considered the following dictum of Nugent J in Davis v Tipp NO & Others 1996 (1) SA 1152 (W):
"Civil proceedings invariably create the potential for information damaging to the accused to be disclosed by the accused himself, not least so because it will often serve his interest in the civil proceedings to do so. The exposure of an accused person to those inevitable choices has never been considered in this country to conflict with his right to remain silent during the criminal proceedings. Where the Courts have intervened there has always been a further element, which has been the potential for State compulsion to divulge information. Even then the Courts have not generally suspended the civil proceedings but in appropriate cases have rather ordered that the element of compulsion should not be implemented."
Based on the above principles, the Labour Court stated that what our courts frown upon is the State, in civil proceedings, using its machinery to force a person to give information that may render that person liable to criminal prosecution. This is the element of 'State compulsion' that may justify a court's intervention, namely that the State cannot and should not compel anyone to expose themselves to criminal liability and then prosecute that person using such information - which would essentially have been obtained under duress.
According to the Labour Court, the 'State compulsion' scenario is very different to a clash of constitutional rights faced by an employee who is forced to choose whether or not to testify at a disciplinary hearing for fear of self-incrimination. The possible self-incrimination to which such an employee exposes themselves is not by compulsion but rather by choice. The Labour Court emphasised that a distinction must be maintained between the situation where an individual has the choice whether to testify (even though the alternatives over which they have a choice are equally unattractive) and where they are compelled to testify because their failure to do so would attract a penalty.
The Labour Court also reasoned that the question of the applicant's guilt would be determined at the disciplinary hearing based on a balance of probabilities whereas, at a criminal trial, the State would be obliged to prove the applicant's guilt beyond reasonable doubt. This would entail different principles of law and a far higher standard of proof. Furthermore, the evidence, submissions or statements made at the disciplinary hearing would not be automatically admissible at a subsequent criminal trial. This is because evidence produced at a disciplinary hearing cannot be superimposed onto, or incorporated into, the record of the criminal court. The applicant being found guilty (or not guilty) at a disciplinary hearing would have no bearing on the State's obligation to prove the applicant's guilt beyond a reasonable doubt at a criminal trial.
The Labour Court concluded that even if the criminal complaint or charge was laid by the employer, this could never prevent the employer from subjecting the employee to a disciplinary hearing. The Labour Court criticised the applicant for launching an application based on a misguided and incoherent understanding of the relevant legal principles. The upshot of the applicant's reasoning, the court remarked, was that the applicant should remain immune from disciplinary processes, or be indemnified from being subjected to workplace discipline, for the duration of the criminal investigation - which may take years to complete and then for the duration of the criminal trial, if it ever occurred.
Effectively, the applicant sought to use to his advantage the fact that the alleged misconduct also constituted a criminal offence to avoid being subjected to a disciplinary hearing. The Labour Court found that "[t]his kind of reasoning which is clearly self-serving, is so flawed, misguided and ill-conceived that it deserves special censure in the form of an appropriate order for costs". The applicant's urgent application was therefore dismissed with costs.
This judgment is an important reminder to employers that the fact that certain alleged misconduct may also constitute a criminal offence does not prevent the employer from subjecting the employee to a disciplinary hearing in the ordinary course, even if the criminal complaint or charge was laid by the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
