Employee dishonesty during a disciplinary inquiry must be distinguished from an unsuccessful defence. An employee who denies misconduct and presents a version that is rejected by the chairperson has not necessarily acted dishonestly. A version may be rejected because it is improbable, inconsistent or contradicted by other evidence. That is different from finding that the employee knowingly or deliberately lied. The distinction matters. An employer should not automatically treat an unsuccessful defence as a separate dismissible offence. However, where objective evidence establishes that an employee deliberately fabricated evidence or knowingly made a false statement, the conduct may constitute separate misconduct and may have consequences for the employment relationship. The fairness of any dismissal will depend on the nature of the alleged dishonesty, the evidence supporting it, the employee’s notice of the case they had to meet, the opportunity afforded to them to respond and the appropriateness of dismissal as a sanction.

A Rejected Version of Events is Not Automatically a Lie

In a disciplinary inquiry, an employee is entitled to respond to the allegations and put forward a version of events. The fact that the chairperson ultimately prefers the employer’s evidence does not, without more, establish that the employee deliberately lied. There is an important difference between the following findings:

  • “The employee’s version is improbable and is rejected on a balance of probabilities”; and
  • “The employee knew that the version was false but nevertheless deliberately presented or maintained it.”

The first is a finding about the reliability or probabilities of the evidence. The second is a finding of dishonesty and requires a proper evidentiary basis. An employer should therefore be cautious about equating an unsuccessful defence with dishonesty. Employees should not be penalised merely for exercising their right to deny an allegation or for presenting a version that is ultimately rejected.

What If Dishonesty Was Not Part of The Original Charge?

The absence of the word “dishonesty” from a charge is relevant, but it is not necessarily decisive. The key question is whether the employee had adequate notice of the material allegation and a fair opportunity to answer it. An employee should understand the factual case they are required to meet. An employer should not rely on a new and materially different allegation at the sanction stage without giving the employee an opportunity to respond. For example, an employee charged with absenteeism may deny being absent. The chairperson may reject that denial and find the absenteeism charge proved. That does not automatically justify a further finding that the employee committed dishonesty. The position may be different where the charge and evidence clearly put the employee on notice that the employer alleges a deliberate false statement, fabrication, concealment or obstruction of the investigation. In that situation, the employee should be given a proper opportunity to address the allegation before a finding is made.

The Labour Court has previously cautioned against finding an employee guilty of dishonesty where dishonesty was not part of the case the employee was required to answer. In Rennies Distribution Services (Pty) Ltd v Bierman NO and Others [2008] ZALCD 8, the Court considered whether an employee could be found guilty of dishonesty where the employee had not been charged with that misconduct. The case supports the broader principle that an employee must receive adequate notice of the material allegations and a fair opportunity to respond.

From a practical perspective, although not absolute, where dishonesty emerges from an employee’s defence during a disciplinary inquiry, it is generally preferable to finalise the original charge before dealing with the dishonesty separately. If an employee is charged with absenteeism and claims that they were in a car accident, the chairperson can determine the absenteeism charge on the evidence presented and, if guilty, impose an appropriate sanction. If the evidence indicates that the employee deliberately fabricated the explanation, the employer can then consider bringing a separate dishonesty charge. A separate inquiry should be considered only where the dishonesty allegation is distinct and could not reasonably have been included in the original charge based on information already available to the employer. The second charge should identify the specific statement alleged to be false and the evidence supporting the conclusion that the employee knew it was false. This approach avoids surprise and provides a cleaner, more defensible process.

When Can a Lie Constitute Separate Misconduct?

An employee does not have an unlimited right to deliberately mislead an employer. Depending on the circumstances, the following conduct may constitute separate misconduct:

  • knowingly giving false evidence;
  • fabricating documents or other evidence;
  • deliberately concealing material information;
  • making a false statement during an investigation;
  • misleading the chairperson about a material issue; or
  • obstructing an investigation through deliberate deception.

The employer must nevertheless prove more than that the employee’s version was unsuccessful. The evidence should support a finding, on a balance of probabilities, that the employee knew, or was reasonably certain, that the material statement was false and nevertheless made or maintained it. The seriousness of the conduct will depend on the circumstances. Relevant considerations may include whether the lie was material, whether it was deliberate, whether it affected the investigation, whether it damaged the trust relationship and whether the employee showed insight or remorse. In Maepe v Commission for Conciliation, Mediation and Another [2008] ZALAC 2, the Labour Appeal Court recognised that deliberate dishonesty during disciplinary or arbitration proceedings may be relevant to whether reinstatement is appropriate. However, such dishonesty cannot retrospectively cure an otherwise unfair dismissal. Fairness must be assessed by reference to the reason relied on and the procedure followed at the time.

What Should an Employer Do?

An employer should distinguish between an unsuccessful defence and deliberate dishonesty. An improbable, inconsistent or rejected version does not, without more, prove that the employee knowingly lied. Where a separate dishonesty charge is considered, the employer should:

  • identify the specific statement or conduct alleged to be dishonest;
  • establish, through objective evidence, that the employee knowingly or deliberately made a false statement or sought to mislead the employer;
  • provide the employee with proper notice of the dishonesty allegation and a fair opportunity to respond; and
  • assess the dishonesty charge and sanction separately, having regard to the seriousness of the conduct, its effect on trust, the employee’s record and relevant mitigating factors.

A cautious, risk-averse approach is therefore advisable. The original charge should be finalised first, and any later dishonesty inquiry should concern only distinct misconduct, supported by evidence that could not reasonably have been included in the original charge.