The Labour Court reviewed and set aside some provisions of an arbitral award.  The arbiter had misapplied the prevailing law on inconsistency regarding dismissals, and that meant the award was unreasonable.  It is an acceptable practice to obtain a plea bargain to assist in proving the validity of a reason for dismissal of other employees.  It is not always necessary for evidence of the destruction of trust or confidence to be adduced [fair reason], particularly when a valid reason for dismissal is related to gross misconduct involving dishonesty.  Unfortunately the language used in the judgment suggests it was a criminal matter and not a civil matter based on unfairness.

MEC: Department of Health, ECP v PHSDSBC (PR63/14) [2016] ZALCPE 9; [2016] 6 BLLR 621 (LC) (16 March 2016) per Whitcher J

Excerpts without footnotes

[39]      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.  Not to allow witness plea bargains on the basis that they create inconsistency would be to shut the door on an important mechanism used in criminal law every day and which may, in my view, with appropriate checks and balances, be fairly imported into labour law as a method of obtaining evidence of wrong-doing.  Indeed, it is hard to see how, without the facility of witness plea agreements, an employer would successfully prosecute certain acts of misconduct.  It is unfortunately true that wrong-doers are ever more resourceful, devising increasingly sophisticated methods of operation which hide their misconduct and identity from their employer.  Accomplice testimony is an essential tool in piercing the veil of secrecy surrounding certain offences especially in detecting corruption by public officials, syndicate theft and white-collar offences.

[40]      The true attack on the present accomplice plea agreement would have been whether the department exercised its discretion to select Mxesibe unfairly.  In my view, an employer possesses a wide amount of latitude in selecting whom among a group of people involved in misconduct it selects for an accomplice plea agreement.  Factors that may legitimately be taken into account in selecting such a witness could include: an assessment of his or her availability, strength and credibility as a prospective witness; trustworthiness and ability to withstand any pressure to recant; depth of knowledge of the facts which make up the misconduct; access to corroborating evidence; cooperation and initiative during the investigation; attitude of remorse before the benefit of a lesser sanction was offered; and previous disciplinary record.

[41]      An employer is not called upon to justify its decision to offer a plea agreement to one employee over another in fine detail.  It should have a wide discretion in selecting the witness it wishes to use.  The key issue is that its selection should not betray male fides.  Signs that the decision to offer a plea deal were not fairly exercised would include: that 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.

[42]      It is further, in my view, for the party alleging that an employer has unfairly exercised its discretion in offering a witness plea agreement to a particular employee to make out such a case.  In other words, the employee party has to lay an evidentiary basis for unfairness before the employer is called upon to justify its decision .