Deal or no deal? Procedural fairness guidelines when an independent chairperson rejects a plea agreement

A plea-bargain agreement is an arrangement in which a guilty plea is exchanged for a more lenient sanction. While rooted in criminal procedure, South African labour forums may accept plea-bargain agreements as an efficient and cost‑effective tool in disciplinary hearings.

The Facts 

A Sergeant in the South African Police Service (SAPS) faced serious allegations, including unauthorised use of a state vehicle; garaging the vehicle at his private residence without approval; and falsifying or manipulating travel records. During the disciplinary process, the Sergeant concluded a plea-bargain agreement with SAPS in terms of which he would plead guilty to all charges in exchange for a lenient sanction: a suspended dismissal for six months and a R500 fine.

The independent chairperson accepted the guilty plea but considered the agreed sanction inappropriate, given the seriousness and dishonest nature of the misconduct, and rejected it. The chairperson then imposed the sanction of dismissal.

The Sergeant challenged both the procedural and substantive fairness of his dismissal at the Safety and Security Sectoral Bargaining Council (SSSBC). The arbitrator held that the chairperson was bound by the plea-bargain terms and should have imposed the agreed sanction. The Labour Court upheld the arbitrator’s award and reinstated the Sergeant.

The LAC’s analysis

On appeal, the LAC held that an independent chairperson, who acts with the persona of the employer in a disciplinary enquiry, is not automatically bound by a plea-bargain agreement when determining sanction. A chairperson must independently assess whether the proposed sanction is fair, appropriate and commensurate with the misconduct. On the facts, the chairperson was entitled to consider the agreed sanction too lenient.

However, the LAC found the chairperson committed a procedural irregularity by accepting the guilty plea while rejecting the bargain’s agreed sanction. By doing so, the chairperson effectively “collapsed” the plea agreement without affording the Sergeant the opportunity to revert to a not‑guilty plea, thereby undermining his right to be heard. This rendered the process procedurally unfair.

Importantly, the LAC confirmed that arbitration is a de novo hearing: an arbitrator must independently assess the evidence and sanction afresh. On the merits, the LAC held the dismissal substantively fair in light of the serious misconduct and dishonesty, but procedurally unfair due to the flawed handling of the plea agreement. It awarded the Sergeant compensation equivalent to three months’ remuneration.

Rejecting plea-bargains – A fair procedure 

The LAC proposed the following procedural guidelines when a chairperson rejects a plea-bargain agreement:

An independent chairperson should:

• inform the parties of the intention not to endorse the agreed sanction and provide reasons; and
• allow the parties an opportunity to review their positions, which may involve:
• renegotiating the sanction in light of the chairperson’s reasons; or
• terminating the plea-bargain agreement.
• If the parties intend to terminate the plea-bargain agreement:
• the employee must be allowed to withdraw the guilty plea; and
• the disciplinary enquiry should commence de novo before a different chairperson, unless the employee consents to the same chairperson continuing.

Additionally, the LAC reaffirmed that an arbitrator at the CCMA or a bargaining council must hear disputes de novo, applying an independent mind to the evidence and determining the fairness of the sanction without deference to the employer’s decision.

Key takeaways for employers

• Subject to the employer’s disciplinary policy and the employment contract, plea-bargain agreements are not binding on an independent chairperson. The chairperson retains a discretion to determine an appropriate sanction.
• To avoid compensation awards for procedural unfairness, a chairperson who declines to endorse an agreed sanction must follow a fair process: give reasons, allow reconsideration or termination of the agreement, permit withdrawal of the guilty plea, and, if terminated, ensure de novo hearing before a different chair unless the employee consents otherwise.
• Employers should review and update disciplinary codes and procedures to provide clear guidance on the use, scrutiny and potential rejection of plea-bargain agreements by independent chairpersons.