Pretoria - A project manager at the Modimolle-Mookgophong Local Municipality in Limpopo lost his urgent bid for a disciplinary hearing against him to be put on ice, pending the outcome of a possible criminal prosecution against him.
The worker turned to the Labour Court in Johannesburg, arguing that his constitutional rights for a fair trial would be compromised if the disciplinary hearing went ahead, as he may incriminate himself during this hearing.
He feared that what he said during the hearing may be used against him in possible criminal proceedings.
In turning down his application, the court said where a criminal complaint or charge is laid by an employer, it does not stand in the way of that same employer subjecting the employee to a disciplinary process in the workplace.
The employee was charged with misconduct in connection with 19 payments made to certain service providers. The essence of the charge was that he failed to follow the internal control procedures of the municipality.
The municipality further laid criminal charges with the SAPS in respect of some of the charges that the employee had to answer to at the disciplinary hearing.
The main issue for determination was whether an employer may be interdicted from starting or from proceeding with a disciplinary hearing where criminal charges have been laid or are under investigation or are pending before court.
Towards the end of January the applicant was charged with misconduct in connection with 19 payments made to certain service providers.
The applicant had no difficulties with the disciplinary hearing in respect of the misconduct charge, but things changed when the municipality added two more charges to the charge sheet.
The municipal manager then laid charges of fraud against the applicant with the SAPS.
He was accused in the additional charges of being guilty of fraud amounting to nearly R2 million.
The applicant protested at this turn of events, complaining that the laying of criminal charges against him in respect of some of the charges placed him in a quandary.
His main concern was that he would not be able to answer fully or even at all to the additional charges at the disciplinary hearing without compromising his right not to give self-incriminatory evidence.
His fear was that the evidence he might give at the disciplinary hearing could be used against him at the criminal trial, if the matter went to court.
Acting Judge M Jolwana commented that if a person in this position chooses not to testify at a disciplinary inquiry for fear of self-incrimination, he exposes himself or herself, not by compulsion but by choice, to the possibility of not being able to protect his or her job.
“The hard choices he or she faces have nothing to do with the employer enforcing the code of conduct and discipline in the workplace which, in any event, is generally incorporated explicitly or by necessary implication into the employment contract.”
The judge pointed out that the procedures at a disciplinary hearing and a criminal trial are vastly different.
At the criminal trial, the assessment of the evidence is based on very different principles of law.
The test is not that of determining the preponderance of probabilities. It is based on the fact that, first, the accused person does not have to prove his innocence.
The responsibility to establish the guilt of an accused person is that of the State, and the State alone.
He said the evidence, submissions or statements made at a disciplinary hearing are not automatically admissible in a criminal trial that may ensue down the line.
The judge said the applicant had not established any basis on which he deserved protection from the disciplinary hearing.
Pretoria News