Inconsistency Claims & The Burden of Proof

by Nikita Petersen

Section 23 of the Constitution states that everyone is entitled to fair labour practices. This right is guaranteed for everyone – employees as well as employers. In addition, the LRA`s Code of Good Practice: Dismissal accentuates the need for certainty and consistency in disciplinary rules but acknowledges that sanctions may vary based on circumstances. Furthermore, it provides guidance to employers on the various aspects of dismissal, fair procedure, and substantive fairness.

Section 192 (1) of the Labour Relations Act 66 of 1995 (LRA), states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal on a balance of probabilities, which is the standard of proof, and only then must an employer prove that the dismissal was fair.

In a recent judgement the Labour Court, in PR184-21. TAFENI, NOBULUMKO V SAPS, was required to deal with the condonation application and a review application.

Since the review application was served outside the prescribed six-week period. The employee had applied for condonation. However, both the review and condonation applications were opposed by the SAPS.

In this matter the court held, if condonation fails, that will be the end of the matter. If the applicant succeeds in her condonation application, then the merits for the review application would be addressed.

The court further stated that the test for condonation is whether it is in the interest of justice for the Court to condone the late delivery of the main application. The factors relevant to this enquiry include:

Ø  the extent and cause of the delay,

Ø  the reasonableness of the explanation for the delay,

Ø  the effect of the delay on the administration of justice and other litigants, and

Ø  the prospects of success on the merits if condonation is granted.

The employee was employed as a police officer by the South African Police Service (SAPS). On 6 January 2020, the SAPS issued a notice of expeditious process against the employee for serious misconduct that she allegedly committed on 23 August 2019. It was alleged that the employee contravened the SAPS disciplinary regulations in that she brought its name into disrepute or acted in a manner that was detrimental to the SAPS’ image or was involved in dishonest conduct in that at approximately 22h00 on 23 August 2019, she was found in possession of stolen stock in the form of two sheep in her vehicle. Following the expeditious process, she was dismissed with effect from 26 February 2020.

The employee was unhappy with her dismissal. She declared and referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council (SSSBC) on 27 February 2020. She challenged both the procedural and substantive fairness of her dismissal. The dispute was arbitrated by a commissioner.

On 10 March 2021, the commissioner issued an arbitration award in terms of which he found that the dismissal was procedurally unfair to but substantively fair and awarded the employee compensation in the amount of R20 027.25.

Aggrieved, the employee launched an application in terms of section 145 of the Labour Relations Act (LRA) to review and set aside the award. She sought substitution of the award with an order that her dismissal was substantively unfair and that she be reinstated retrospectively, alternatively that the dispute be remitted to the SSSBC for arbitration de novo before another commissioner.

The court held that an employee who relies on the defence of inconsistency must raise its case upfront and must do so with sufficient particularity. Moreover, in this matter, the court said that there are requirements for alleging inconsistency to be established and they are that:

Ø  No names of employees were identified.

Ø  No charges or outcome of the disciplinary hearing against these unnamed individuals were produced

Ø  Nor was there any specific evidence about these individuals.

On the facts of this matter, the Labour Court said that the employee failed to show that the employer was to blame. The court further found that the employee made general and unsubstantiated allegation of inconsistency, and that her argument amounted to gossip and was rejected. Resulting in the condonation application being dismissed.

Conclusion:

Based upon the aforesaid, it highlights the severe consequences of failing to meet statutory obligations. Especially if one considers the rules of evidence, then it should be clear that the employee needs to do more than to make an allegation of a possible defence – the onus is on him/her to substantiate prima facie evidence.