I have often reminded employers of the provisions of section 188 of the LRA. Appreciation for the importance of these provisions is crucial for employers who are considering dismissal of employees because they categorically and firmly place the onus of proof on the employer.

What confuses employers is the common law principle that, where the employer has provided prima facie proof of guilt, the onus of proof shifts to the employee. This confusion arises, in part, from the fact that it is open to argument as to whether the employer’s evidence does or does not meet the standard of prima facie evidence.

Prima facie evidence is that which is acceptable because it is both legal and apparently persuasive even if it is not thoroughly convincing. Where an arbiter, for good reason, disbelieves such evidence, it will not qualify as prima facie evidence.

Due to section 188, to persuade an arbitrator that evidence is acceptable, the employer needs to go the extra mile. While it is possible that some arbiters might accept flimsy evidence as prima facie, most arbitrators will probe the employer’s evidence carefully and will identify its weaknesses.

It is well known that both confessions and polygraph test results constitute inherently weak evidence. As a result, employers should not rely on them in the absence of more solid evidence. Also, where the employer does rely on such questionable evidence it must be presented in the most convincing way possible to have a chance of succeeding.

In The Matter Between Itec AS (Pty) Ltd vs Siyabulela Elias Mnguni (Lex Info 07 September 2026. Labour Appeal Court Case No. A2025-076421) Mnguni was dismissed for theft. The guilty finding was based on the results of a polygraph test and on an alleged confession by Mnguni.

At arbitration evidence of the alleged confession was presented purely via the testimony of two witnesses. No recording of the confession was submitted. Also, at his disciplinary hearing the employee pleaded not guilty. This, together with the absence of a written record of the alleged confession resulted in doubt by the arbitrator that the confession had been made.

Further, the implementer of the polygraph test did not give evidence at the arbitration hearing. This prevented the employer from showing that the test had been conducted properly, that the polygraph equipment was in good condition and that the reported result of ‘deception’ was reliable. Bearing in mind that even properly conducted polygraph tests are not entirely reliable, the poor presentation of the test outcome at arbitration could not be persuasive.

The employee’s defence was that a supervisor had given him permission to take the item that he had been accused of stealing. The employer argued in court that the employee should have called that supervisor to confirm his claim. However, the Court disagreed, pointing out that the onus of proof only fell to the employee if acceptable prima facie evidence of guilt had first been presented by the employer. As neither the confession evidence nor the polygraph result had met this standard of proof the onus remained with the employer.

Consequently, the Court upheld the arbitrator’s unfair dismissal finding and award of 8 months’ compensation.               

Since South African labour law heavily protects employees, employers cannot use half measures to prove misconduct. Frequent and costly losses by employers at the CCMA and in court highlight the need for employers to train their managers on the gathering, preparation and presentation of convincing evidence.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve crucial labour relations knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

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This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.

Written by lvan lsraelstam, 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

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za