Burden of substantive evidence for employer in dismissal

In dismissal cases, the employer has to prove – on a balance of probabilities – that dismissal was both substantively and procedurally fair.

In National Union of Mineworkers obo Zulu/ Anglo Gold Ashanti/ Moab Khotsong Mine – (2018) 27 CCMA 8.23.1 also reported at [2018] 6 BALR 650 (CCMA):

● An employee, a security officer, was dismissed for allowing unknown persons to remove drums of oil from a store at the employer’s mine without checking the documents that would have confirmed the authenticity of the removals. The employee was also dismissed for entering the incorrect registration of the vehicle concerned in his occurrence book.

● He claimed that he was under the impression that the drums had been erroneously delivered by a supplier who was entitled to take them away.

● The commissioner held that the employer’s evidence proved that the employee had been dishonest and exposed the employer to risk.

● By contrast, the employee’s evidence had changed frequently.

● The employee’s dishonest attempts to conceal his misconduct aggravated the issue.

● The evidence indicated that, on a balance of probabilities, the employee had acted in collaboration with the driver.

● The employee claimed he had been treated inconsistently and the employer had not proved it had suffered loss. The comparators on which the employee relied were clearly distinguishable and potential loss is enough to sustain a charge of dishonesty or gross negligence.

● The employee's dismissal was, accordingly, substantively fair.

● The application was dismissed.