Ghost Workers and Disciplinary Standards

Grant Wilkinson
1 day ago
4 min read

Insights from the Gauteng Department of Education Case

Reinforcing Best Practices in Light of South Africa's Draft Code of Good Practice on Dismissal

The recent Labour Appeal Court judgment in Gauteng Department of Education v General Public Service Sectoral Bargaining Council and others, serves as a critical reminder that disciplinary proceedings need not mirror the rigorous standards of criminal trials. This landmark case, decided on 22 January 2025, coincides with the publication of South Africa's Draft Code of Good Practice on Dismissal and offers valuable insights for employers navigating complex misconduct allegations in the modern workplace.

Case Summary: When Passwords Become Pathways to Fraud

The case involved three employees dismissed for misconduct related to the appointment of "ghost workers" over nearly two years. A colleague, who was subsequently criminally convicted, had repeatedly used their PERSAL passwords to create fraudulent appointments. Despite this undisputed fact, the arbitrator found the department's case "highly improbable and not convincing", leading to reinstatement with full back pay.

The Labour Appeal Court ultimately overturned this decision, emphasising that the probabilities overwhelmingly favoured the conclusion that the employees had committed misconduct. The employees had conceded that their monthly-changing passwords were repeatedly used by the convicted individual but failed to provide any explanation for how this occurred.

Key Legal Principles Reinforced

1. Disciplinary Proceedings Are Not Criminal Trials

The LAC confirmed that disciplinary proceedings are not criminal or civil trials, and this principle is now reflected in the Draft Code of Good Practice on Dismissal published for public comment on 22 January 2025. This means:

Charge sheets need only inform employees of the case they must answer
Legal technicalities should not overshadow substantive justice
Balance of probabilities, not proof beyond reasonable doubt, applies

2. Practical Approach to Evidence

The arbitrator's "excessively technical approach" was criticised for:

Ignoring undisputed evidence
Failing to assess the employees' inability to explain password usage
Requiring impossible standards of proof

Analysis: Draft Code Alignment and Contradictions

The Draft Code of Good Practice on Dismissal shows remarkable alignment with this case's principles:

Areas of Strong Alignment

Flexibility in Procedures: The Draft Code allows flexibility in disciplinary procedures, emphasising fair and expeditious handling of misconduct without always needing formal procedures, while recognising that small businesses may need different dismissal processes due to limited resources.
Practical Standards: The Draft Code includes considerations such as the impact of misconduct on the business and whether there is any acknowledgement on the part of the employee and willingness to comply with the employer's rules and standards.
Evidence Assessment: The case's emphasis on evaluating probabilities rather than seeking absolute proof aligns with the Draft Code's practical approach to workplace discipline.

Potential Areas of Tension

While the Draft Code maintains flexibility, it also emphasises procedural safeguards that could potentially conflict with the case's streamlined approach:

Investigation Requirements: The Draft Code maintains that employers should conduct investigations, though "not necessarily formal enquiries"
Small Business Considerations: The Draft Code specifically acknowledges that small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes.

Strategic Implications for Employers

1. System Security and Accountability

The ghost workers scandal highlights critical vulnerabilities in organisational systems. Recent parliamentary concerns about ghost workers being "a significant drain on already limited public funds" and undermining "public trust" emphasise the urgency of addressing these issues.

Best Practice: Implement robust password policies, regular system audits, and clear accountability measures for system access.

2. Evidence-Based Decision Making

The case demonstrates that employers should focus on:

Documented system usage patterns
Employee failure to provide reasonable explanations
Circumstantial evidence creating overwhelming probabilities

3. Charge Sheet Simplification

Following the LAC's guidance, employers should:

Focus on facts rather than legal technicalities
Clearly communicate the misconduct alleged
Avoid over-complicating disciplinary charges

Key Takeaways and Best Practices

For Disciplinary Hearings:

Maintain Proportionate Standards: Apply workplace-appropriate evidence standards; Focus on balance of probabilities; Don't allow technical objections to derail substantive justice.
Document System Access and Controls: Maintain clear audit trails; Implement robust password policies; Regular monitoring of system usage.
Handle Employee Explanations Appropriately: Give employees opportunities to explain; Assess the reasonableness of explanations provided; Draw appropriate inferences from failure to explain.
Consider Draft Code Implications: Assess the impact of misconduct on business operations; Evaluate employee acknowledgment and willingness to comply; Apply size-appropriate procedures.

For Risk Management:

Proactive System Security: Regular password changes (as implemented in PERSAL); Multi-factor authentication where possible; Clear consequences for password sharing.
Early Detection Mechanisms: Regular payroll audits; Cross-referencing administrative datasets; Biometric verification systems.

Looking Forward: The Evolution of Workplace Discipline

This case, combined with the Draft Code's modernisation efforts, signals a move toward more practical, business-focused approaches to workplace discipline. The Draft Code seeks to modernise and clarify guidance for employers, employees, trade unions, and other stakeholders on the legal obligations surrounding dismissals, focusing on balancing fairness with practicality.

The message is clear: while employees deserve fair treatment and due process, employers need not navigate impossible evidentiary standards when addressing serious misconduct. The key lies in applying reasonable, proportionate procedures that serve both justice and business efficiency.

The Gauteng Department of Education case reinforces that South African labour law continues to evolve toward practical solutions that balance employee rights with operational realities. As we await the finalisation of the new Code of Good Practice on Dismissal, employers should embrace these principles while maintaining robust systems to prevent the very misconduct this case so effectively addressed.

The ghost workers may have been exposed, but the lessons they leave behind will strengthen disciplinary practices across South Africa's workplaces for years to come.

What are your thoughts on balancing procedural fairness with practical business needs in disciplinary proceedings?

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