CONFESSING MISCONDUCT: HOW FAR EMPLOYERS CAN RELY ON EMPLOYEE ADMISSIONS

Introduction

In South African labour law, the use and legal effect of employee confessions remain complex, particularly because the Labour Relations Act 66 of 1995 (LRA) provides no guidance on their admissibility. Consequently, courts and arbitrators have developed common-law principles to determine when a confession may justify disciplinary action or dismissal. This article reviews the key requirements for a valid confession, the risks of relying on confessions without proper evidence, and the jurisprudence developed in cases such as SACCAWU obo Dlabantu v OK Bazaars, OK Bazaars v CCMA, Assmang v Martin, and Brauns and Others v Wilkes N.O. It also highlights the importance of effective managerial training in ensuring lawful disciplinary practices.

The Legal Status of Confessions in Labour Law

1. Absence of Statutory Guidance

The LRA provides no guidance on whether a confession may serve as conclusive proof of misconduct. In contrast, the Criminal Procedure Act sets strict requirements, including a general prohibition against admitting confessions unless made before a magistrate or, in certain circumstances, a commissioned officer. Because labour law is not governed by criminal standards, the admissibility of confessions is determined through case law and general principles of fairness.

2. General Requirements for a Valid Confession

South African labour jurisprudence has consistently affirmed three core requirements governing the admissibility and weight of employee confessions:

1. Voluntariness – A confession must be made freely and voluntarily, without any form of coercion, intimidation, threat, inducement, or undue influence.
2. Clarity and Understanding – The confession must be clear, unequivocal, and made with full understanding of its nature and consequences.

3. Proof that the Offence Actually Occurred – Importantly, even a valid confession does not absolve the employer from the obligation to prove, on a balance of probabilities, that the alleged misconduct actually took place.

Accordingly, while a confession may constitute compelling evidence, it does not operate as an automatic plea of guilt nor as a substitute for proper investigation and evidentiary substantiation.

The Necessity (or Not) of Corroborating Evidence

In SACCAWU obo Dlabantu v OK Bazaars, several employees were dismissed after making video-recorded confessions admitting that they had consumed sweets and cooldrinks belonging to the employer. The employees later alleged that the confessions had been coerced. The arbitrator found the dismissals substantively unfair on the basis that the employer failed to present additional corroborating evidence which it claimed to possess. The award therefore implied—incorrectly—that a confession must be corroborated to be relied upon in labour proceedings.

On review in OK Bazaars v CCMA, the Labour Court overturned the CCMA’s decision. The Court held that the arbitrator had improperly imported a criminal-law standard into a labour-law context by treating corroboration as a prerequisite for the admissibility or reliability of a confession. In civil and labour matters—where the standard of proof is a balance of probabilities—no such requirement exists.

The Labour Court affirmed that a confession need only be shown to be voluntary, clear, and reliable, and that corroboration is not a legal necessity. This principle has since become a central feature of South African labour-law jurisprudence concerning the treatment of confessions.

Confessions to Non-Offences

In Assmang v Martin,  the Labour Court’s decision in Assmang v Martin (JR 03/2023) further illustrates the limits of confessions in labour matters. Martin had confessed only to giving two colleagues a lift, which the employer treated as evidence of accessory liability in an alleged theft.

However, no proof existed that a theft had occurred, no evidence suggested Martin had knowledge of any wrongdoing, and The “confession” did not relate to misconduct or a criminal offence.

Both the arbitrator and Labour Court held that dismissal was substantively unfair. The employer had attempted to convert a benign admission into an inference of criminal complicity, notwithstanding the absence of evidence. This case highlights that a confession cannot substitute for proof of the underlying offence.

The Labour Appeal Court Clarifies the Law:

Brauns and Others v Wilkes N.O. and Others, the LAC’s 2024 decision in Brauns provides the most authoritative contemporary exposition of the law on confessions.

Factual Overview:

The employees were dismissed from the South African Police Service (SAPS) for dishonesty relating to unauthorised overtime payments processed using colleagues’ credentials. Before disciplinary proceedings, Brauns confessed to the fraudulent activity before a magistrate and later in writing.

The LAC’s Legal Reasoning:

The Labour Appeal Court reaffirmed several core principles regarding the treatment of confessions in labour proceedings. First, a confession is admissible provided it is made voluntarily and without any form of coercion, intimidation, or undue influence. Secondly, an employee need not be apprised of formal charges prior to making a confession, as such admissions often arise during the investigative stage rather than during formal disciplinary proceedings.

Importantly, the Court emphasised that a confession does not constitute a plea of guilty and does not bring an end to the employer’s obligations. Even where a valid confession exists, the employer must still:

1. ensure that a procedurally fair disciplinary process is followed; and
2. establish, on a balance of probabilities, that dismissal is an appropriate and proportionate sanction.

In the case under consideration, the confession was supported by objective corroborating evidence, and the Labour Appeal Court accordingly upheld the dismissals.

The Need for Managerial Training

Employers who fail to equip their managers with foundational labour-law knowledge risk replicating the procedural and substantive errors demonstrated in the cases discussed above. In several instances, dismissals were ultimately overturned because employers:

1. relied on confessions that were either coerced or insufficiently clear,
2. failed to establish that the alleged misconduct had in fact occurred,
3. improperly imported criminal-law standards into workplace disciplinary processes, or;
4. pursued dismissals in circumstances where no actionable misconduct existed.

These recurrent shortcomings reflect systemic gaps in managerial understanding and the operational implementation of labour-law principles. To address these deficiencies, innovative training tools—such as the Walking the Labour Law Tightrope video series—offer managers a practical, accessible, and cost-effective means of gaining competence. Comprising 48 concise and pragmatic chapters, the series enables managers to learn at their own pace, while the year-long access ensures ongoing reinforcement and support for emerging workplace disputes.

Such resources are essential in ensuring that managers are able to “walk the labour-law tightrope” with confidence, thereby reducing the risk of procedural unfairness, minimising exposure to costly litigation, and promoting a more compliant and equitable workplace environment.

Conclusion

The legal framework governing employee confessions in South African labour relations reflects a deliberate balance between evidentiary utility and the overarching principles of fairness. Although confessions are admissible and may carry considerable evidentiary weight, they do not, in themselves, establish guilt nor automatically justify disciplinary action or dismissal. For a confession to be legally valid, it must be voluntary, unambiguous, and corroborated by independent evidence demonstrating that the misconduct in question actually occurred. Employers remain bound by the dual requirements of substantive and procedural fairness as set out in the LRA.

Recent jurisprudence, most notably the Labour Appeal Court’s decision in Brauns, reinforces that confessions form only one component of the evidentiary matrix. They are neither conclusive nor a procedural shortcut to dismissal. Employers who rely solely—or disproportionately—on confessions without conducting a proper investigation, or who misunderstand the legal thresholds applicable to their use, expose themselves to significant legal risk, including reinstatement orders, compensation awards, and unfavourable judicial scrutiny.

These developments underscore the critical importance of comprehensive managerial training in labour law. Practical and accessible tools play a vital role in equipping managers with the knowledge required to navigate disciplinary processes lawfully and effectively. Such interventions are essential for promoting compliant, defensible, and well-governed workplace decision-making.

For further assistance, consult an attorney at SchoemanLaw Inc.