Should an employee be criminally charged in respect of conduct that happened at the employee’s workplace, the question can arise as to whether the employer is now prohibited from proceeding with disciplinary action against the employee given the pending criminal charges. 

In the recent case of Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another (JS562/23) [2023] ZALCJHB 190) the Labour Court had to consider whether it would be fair for an employer to proceed with disciplinary action against an employee on charges that are the subject of criminal prosecution against the same employee. 

In the aforementioned case, the employee was concerned that a disciplinary hearing would put him in a position to give self-incriminatory evidence which would prejudice his constitutional right to a fair trial, particularly the right to remain silent and be presumed innocent, in the pending criminal prosecution. 

The Labour Court weighed the employer’s right to discipline its employee, against the employee’s right to not give self-incriminatory evidence. In doing so, the Labour Court found that it was ultimately immaterial whether the employer laid the criminal charges before or after the disciplinary hearing as the employee could always choose whether to give evidence in the disciplinary hearing and waive their rights, or not.  

Furthermore, The Labour Court found that there are a number of safeguards built into the criminal prosecution process so that the employee would not automatically be prejudiced because they gave evidence at their disciplinary hearing. 

Firstly, in terms of section 35(3) of the Constitution of the Republic of South Africa, 1996 an accused person is protected from being forced to assist the prosecution of criminal charges against them. During the criminal trial, the accused may choose to clear their name but is not obligated to prove their innocence.  

Secondly, an employee’s guilt needs only be determined on a balance of probabilities in the disciplinary hearing, while an accused’s guilt must be proven beyond reasonable doubt in a criminal trial. This means that it is more difficult to prove guilt in criminal prosecution than at a disciplinary hearing.  

Thirdly, the employee’s evidence in the disciplinary hearing, even if self-incriminatory, is not automatically admissible in the criminal trial and the accused has the right to object to the State bringing up the evidence that was mentioned during the disciplinary hearing.  

Fourthly, the state has the duty to bring its own credible evidence independently of the accused. The state is not allowed to rely on the evidence presented during a disciplinary hearing and use it as is in the criminal trial.

In essence, an employee’s rights are sufficiently protected in criminal proceedings, and therefore, the employer may exercise its right to discipline its employee by following a fair and lawful disciplinary process whilst there is a pending or ongoing criminal prosecution against the employee.


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