Several workplace misconducts are also criminal acts. Two of the most apparent ones are theft and assault. When an employee is accused of one of these misconducts, it is common for employers to also lay criminal charges against the employee.
This can create a dilemma for the employee, who may be concerned about incriminating themselves in the criminal case by giving evidence during the disciplinary hearing. The result is that employees often insist that workplace discipline be postponed until the criminal matter has been concluded. Such delays are naturally not in the interests of the employers.
A recent decision by the Labour Court of South Africa clarifies that employees cannot avoid or delay disciplinary action as a result of criminal prosecution.
In the case of Ramthlakgwe v Modimolle-Mookgopong Local Municipality, the applicant employee was charged with misconduct concerning 19 payments made to certain service providers in April 2022. The municipality also laid criminal charges against the applicant in relation to these payments.
The applicant argued that the disciplinary hearing should be postponed until the criminal proceedings were finalised. He argued that he would be prejudiced if required to give evidence at both the disciplinary hearing and the criminal trial.
The court rejected the applicant’s argument, finding that the disciplinary hearing could proceed without compromising his constitutional rights. The court noted that the State would have to prove the applicant’s guilt beyond a reasonable doubt at the criminal trial, while the disciplinary hearing would only require the applicant to be found guilty on a balance of probabilities.
The court held that the employee’s constitutional rights to a fair trial and fair labour practices are not compromised by the fact that both proceedings are taking place.
The court also noted that incriminatory evidence the employee may give at the disciplinary hearing is not automatically admissible at the criminal trial. The employee is entitled to object to the State attempting to cross-examine him at criminal proceedings on what he may have said in the context of a disciplinary enquiry.
In conclusion, the court held that the institution of criminal proceedings, before or during a disciplinary enquiry process, does not constitute an infringement of the employee’s constitutional rights to a fair trial and fair labour practices.
The Ramthlakgwe case makes it clear that employees cannot avoid or delay disciplinary action as a result of criminal prosecution. If an employee is accused of misconduct, they should cooperate with the disciplinary process and not rely on criminal proceedings to avoid being disciplined.
Here are some key takeaways from the case:
- Employees can still be disciplined by their employers even if they are facing criminal charges for the same conduct.
- The disciplinary hearing and the criminal trial are separate proceedings, and the evidence given in one proceeding will not necessarily be admissible in the other.
The Ramthlakgwe case is a reminder that employees should not use the threat of criminal prosecution to avoid disciplinary action. If an employee is accused of misconduct, they must cooperate with the disciplinary process and not rely on criminal proceedings to avoid being disciplined.