Not even those who make labour law are above it. The government has implemented a set of labour laws that are immensely restrictive on employers. They have done so in the name of justice for employees. Despite this, one government entity has been found to have flouted the very laws that the state so proudly claims to have championed.

In the case of Mkhwanazi vs the Presidency reported in The Star of 27 November 2003 Ms Mkhwanazi was fired for allegedly falsifying an invoice. Thoko Mkhwanazi was, at the time, a Director in the Office of the Rights of the Child in the Presidency. According to the report she confronted a consultant who was allegedly a friend of Essop Pahad, the Minister in the Presidency. The confrontation related to a complaint of sexual harassment of another consultant.

Not long after this Ms Mkhwanazi was accused of misconduct. She was suspended and then dismissed eight months later for “wilfully and intentionally instructing the falsification of an invoice”. Mkhwanazi alleged that the charges had been “trumped up in an attempt to remove her from the Presidency at all costs”. She therefore referred her dispute to the General Public Service Sectoral Bargaining Council. (The Council).

The employer alleged that Mkhwanazi committed the falsification by using information from previous travel invoices that had already been paid. This, the employer alleged, breached the public service code of conduct and the Public Finance Management Act. The employer’s investigation revealed that Mkhwanazi had opened an account with Supersonic Travel despite the fact that the Presidency already had such an account. However, the Council, at the arbitration hearing, found that the decision to open this second account had been taken at a meeting attended by the accused’s deputy, the assistant director for finance in the Presidency and officials from the finance  department.

Furthermore, it was found that Mkhwanazi had made no effort to conceal the second account and had not used it for personal benefit.  A material witness of the Presidency was a former secretary who had, according to the report, previously changed a consultant’s quotation from R400 000 to four million rand without authority. The witness had later been fired for misusing the Presidency’s letterheads in order to help an acquaintance. This witness was found by the Council to be a “remarkably dishonest witness who has no credibility at all”.

According to the report the arbitrator said that the Presidency:

➢ Had made a rushed and baseless decision against Mkhwanazi
➢ Had relied on a dubious character as a material witness
➢ Had failed to give the accused an opportunity to respond to the allegations
➢ Had wasted the taxpayers’ money
➢ Had implemented an unfair dismissal
➢ Was required to reinstate Mkhwanazi.

The fact that the Presidency  wishes to take the Council’s decision on review to the Labour Court suggests that it believes that Mkhwanazi was guilty as charged. Even if an employee is reinstated it is still possible that he/she was guilty as charged and may have deserved dismissal. Nevertheless the employee may still be reinstated because the employer has the onus of proving that the dismissal was fair. Even if an employee has committed murder his/her dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove his/her guilt.

In labour law proof does not comprise of:

➢ Trumped up allegations made against the employee
➢ Recriminations against the employee for having laid a complaint
➢ Testimony of unreliable witnesses
➢ Documents that fail to show guilt
➢ Incomplete or one-sided evidence
➢ Hearsay evidence
➢ Reports resulting from flawed investigations

Instead, proof of guilt is a far more scientific and factual exercise requiring:

➢ Testimony that is not contradictory
➢ Evidence that has been tested and cross-examined by the accused employee and, despite such a test, still holds water
➢ Documents that are validated and that clearly show up the employee’s misconduct
➢ Evidence that is corroborated by other evidence
➢ Testimony from credible witnesses
➢ Evidence derived from thorough and honest investigation.

Genuine proof or the acceptability of evidence is not a factor of the status of the accuser but rather a factor of the skill of the investigator and prosecutor in gathering, preparing and presenting the evidence in a legal and effective manner. If the presidency cannot get away with inexpert presentation of evidence then neither can any other employer. In labour law winning is not about power it is about legal expertise.

To attend our 15 November seminar in Cape Town on NEW CHANGES AND DANGERS IN LABOUR LAW 2013 please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.

This article first appeared in The Star.