Many employers have experience of strike action, protected or otherwise, which results in unacceptable striker behaviour, such as intimidation and malicious damage to property. The employer then trundles off to the Labour court to obtain an interdict to restrain the strikers and, on occasion, their picketing rights.
One question which arises, is whether, or not, an employer is entitled to discipline, and ultimately dismiss, a striker for apparently acting in breach of the Court interdict? This precise question was answered in a 21 January 2020 Labour Court judgment in Panorama Park Retirement Village v Commission for Conciliation Mediation & Arbitration & 1 other (Case number JR2472/2015).
At the outset, the judgment informs us that “The question that arises in this review application is whether it is substantively fair to dismiss an employee on allegations of being in contempt of a Court order”.
The background to this case was one which many employers will be familiar with. The union embarked on a protected strike, after which the parties agreed picketing rules at the CCMA. As is all too common, the strikers misbehaved, and the employer approached the Labour Court and obtained an interim Order “Interdicting and restraining the first Respondent as union and the second to 49th Respondents from striking and/or picketing closer than 100 meters from each side, left or right, and within fifty meters in front of each entrance of the entrances (Green and Reg gates) in Best street, Klerksdorp to the Applicant’s property”. Except it did not have the desired effect.
However, management observed one of the strikers who, at approximately 4pm, after the interdict had been obtained “cycling from town on his way home in Best Street close to the Employer’s premises in contravention of the terms of the Court order”.
The employer was of the opinion that it had the authority to discipline the striker in question, for his contravention of the Court Order interdicting the strikers from picketing within one hundred meters of the entrances of the employer’s premises. The employee had also allegedly come across, and spoken with, two replacement workers.
The employer then initiated a disciplinary process, charging the employee with “Contempt of Court: On Thursday 23rd July 2015 at approximately 16h00 you were observed by the assistant manager of Panorama Aftree Dorp, riding up and down Best Street, Oudorp, passing the Red gate, which is one of the entrances to Panorama Park Aftree Dorp. Your actions … is contravention of the ruling of the honourable Justice Whitcher’s Court order on 2nd July 2015, Case No. J1309/15, paragraphs 2.2 and 2.3, in that you harassed and threatened replacement labour and striking closer than 100 meters from each side left or right and within fifty meters in front of each gate of the entrances (Green and red gates)…. Your behaviour amounts to contempt of a Labour Court order”.
Once the disciplinary hearing, the employer abandoned the charges related to allegations of intimidation and threatening violence, and only focused on the contempt of Court misconduct allegation. The employee was found guilty and dismissed.
Unsurprisingly, he appealed the fairness of his dismissal at the CCMA. The Commissioner held that the dismissal of the employee was unfair, noting that “(1) Only the Courts were empowered to determine whether there was contempt of its orders and if so, what sanction to impose. A court order however could not be said to be an instruction issued by an employer and that disobedience of a court order cannot amount to insubordination within the employment context. (2) The Employer failed to prove on a balance of probabilities that a workplace rule existed in respect of which it had the power to discipline and dismiss the Employee. In the absence of such a rule related to contempt of court, it could not be said that the Employee was guilty of a breach of a rule. (3) Even if such a rule existed, it could not be said that the Employee had breached that rule since the Court order did not restrain or prohibit employees from being in the area when they were not picketing and on strike. The Employee as observed in the area was not ‘striking or picketing’, but was on his way home from town, which was his usual route. He had stopped to speak to the two other employees at the end of their shift, and there was nothing wrong with what he did”.
The Labour Court agreed – “The Commissioner in this case had regard to the essence of the charge of contempt of Court and correctly concluded that it is only the Court that could pronounce on whether there was contempt of its orders or not”.
Strong suspicion that an employee has committed misconduct, is a persuasive thing. So persuasive, in fact, that employers are frequently lulled into concluding that the suspicion is so compelling, that it proves employee guilt, of misconduct. Nothing could be further from the truth.
The fact of the matter is that alleged misconduct must be provable, with evidence, which proves that the employee is guilty /on a balance of probabilities’. In simple terms, this means that the employer must lead enough evidence to prove that the probabilities that the employee is guilty, are greater than the probabilities that the employee is not guilty. Put differently, proving guilt in disciplinary hearings requires employers to have proof that the employee probably committed a blameworthy act, or on occasion, omitted to act in circumstances where the omission to act can be held to be blameworthy.
Proof of suspicion fails to meet this requirement, and our courts have been quick to confirm this, as was the case as far back as 1988 when, in Moahlodi v East Rand Gold & Uranium Co Ltd (Industrial Court: 1988), it was held that “mere suspicion does not satisfy the test of proof on a balance of probabilities”.
The landmark, and most often quoted case law on this subject is the Labour Appeal Court judgment in Mbanjwaand Senzeni v Shoprite Checkers (Pty) Ltd & 2 others (Case number DA4/11). The case involved an allegation that the employee had attempted to under-ring items being purchased by a customer who appeared to be an accomplice of the employee”.
To begin with, a key employer witness acknowledged, under dross-examination, that “the whole case against the appellant was based on her suspicion in relation to what she had seen the appellant doing”, continuing that “Without the contravention of any rule and without any reprehensible conduct by Senzeni on 27 April and 28 April 2006, we are left with Vino’s substance of her suspicion on which she subjectively concluded that Senzeni attempted to under-ring the items brought to her till by Lindiwe”.
The judgment critically further noted that “It is my opinion that whereas, there might have been grounds to suspect Lindiwe’s conduct on 28 April 2006, but to suspect that Senzeni was implicated in the attempt to under-ring the respondent’s items was based on Vino’s figment of imagination”
In analysing and evaluating the evidence led, the Labour Appeal Court held that “It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question”.
The Labour Appeal court judgment in Dion Discount Centres v Rantlo (LAC: 1995) was quoted as having held that “It was argued by appellant’s counsel with reference to Moletsane v Ascot Diamonds (Pty) Ltd (1993) 6 LLC 15 (IC) and EATWCSA v The Productions Casting Co (Pty) Ltd (1988) 9 ILJ 702 (IC) that the termination of respondent’s employment was fair as there was a strong suspicion that respondent had participated in the 4 transactions. The presiding officer in the Moletsane matter relied on the judgment in EATWCSA v The Production Casting Co (Pty) Ltd as authority for the finding that ‘it was not unfair for the respondent to dismiss the applicant in the particular circumstances of this case on a strong suspicion of diamond swopping’. I do not find support for this view in the latter judgment. The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship”.
Perhaps the most damning crushing remark made by the judge in the Shoprite Checkers case was that “The high-water mark in this case is nothing but mere suspicion on the part of Pillay that the appellant committed the misconduct charged. There was simply no shred of evidence to buttress or lend any credence to the allegation of the misconduct. It is beyond my comprehension why the appellant was charged for misconduct at all”.
So, there you have it. Employers rely in suspicion alone, to prove guilt in misconduct cases, at their peril.
Sections 193(1) and (2) of the Labour Relations Act, lists a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings. Retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal. On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.
Sections 193(1) and (2) of the Labour Relations Act reads that “Remedies for unfair dismissal and unfair labour practice. – (1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may – (a) order the employer to re-instate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless—(a) the employee does not wish to be re-instated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure”.
However, not every employee who is held to have been substantively unfairly dismissed, is granted retrospective reinstatement, even though that is precisely the remedy they sought.
We know that section 193(2) leaves little dispute that retrospective reinstatement ‘must’ be applied in cases of substantively unfair dismissal, yet exceptions are none the less made for cases in which the unfairly dismissed employee themselves do not seek reinstatement, or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee”
In the recent Labour Court judgment in Sinenhlanhla Precious Mthetwa v the CCMA & 2 others (Case number JR1806/18), the Acting Judge was required to pass judgement on whether an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed, and when the employee sought reinstatement.
The employee had pleaded guilty at a disciplinary hearing, to various allegations of serious misconduct, including assault, intimidation and harassment. She was the dismissed. She the challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have procedurally and substantively unfair.
After having that she sought the remedy of compensation in the pre-arbitration minutes, she altered her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.
When all was said and done, the Commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she sought. The employee then took the judgment on review to the Labour Court, arguing that the Commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the Applicant sought ..”.
Not so, said the Judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the Commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision-maker could not have arrived at”.
So why did the Commissioner and the Judge conclude that the primary remedy of retrospective reinstatement should not apply in this case? Various reasons were articulated. To begin with, the employee was already on a final warning for misconduct, and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.
The Commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion which the Judge noted “is not explained”.
Be that as it may, this judgment aligns with prior case law which gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement, in cases of substantively unfair dismissals.
In the Labour Court case of EOH Abantu v (Pty) Ltd [Case No. JA4/18], the employee had been found guilty of a charge that was not specified in the employer’s charge sheet. In short, the employee had been found guilty of gross negligence, when gross negligence was not specifically included in the charge sheet. On the contrary, the charge sheet included allegations of, amongst other things, dishonesty, theft and fraud. The employee was the dismissed.
What makes this case particularly interesting is the fact that he employee was found guilty of, and dismissed, for misconduct which did not appear anywhere on his charge sheet. Put differently, the employee “was found to have committed the offences although it was not established that he had acted intentionally”.
The employee lodged an unfair dismissal claim at the CCMA. At the arbitration, the Commissioner held that the employee’s dismissal was substantively unfair, as the employee “had been found guilty of the offence of gross negligence with which he had not been charged”.
The arbitration award continued that “It is common cause that the chairperson of the disciplinary enquiry could not find any dishonesty on the (employee’s) part but instead he found the (employee’s) actions grossly negligent” and “I find that the (employer) is bound by the choices it made at the time of charging the (employee)”.
The employer took the arbitration award on review at the Labour Court, and lost. The Labour Court upheld “the arbitrator had correctly found that the employer did not discharge the onus of proving intent, and thus could not prove the misconduct that it had alleged. That is why the dismissal was unfair”.
As also held by the Labour Court, the employee was charged with dishonesty, “that is the case he went to meet and that is the case that the employer could not prove”.
On appeal, the Labour Appeal Court had an entirely different view on this issue, in essence posing the question – had the Commissioner acted unreasonably “in concluding that a finding of negligence was not a competent verdict under the charge”?
In its judgment, the Labour Appeal court acknowledged that “it is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation … however by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance”.
This view was further supported in the judgment which further held that “Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unathorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed”.
This is an entirely sensible judgment, and essentially deals with circumstances in which the alleged act of misconduct is proved on a balance of probabilities, but the employer mistakenly attributes blameworthiness to intent, rather than negligence.
The judgment went further to add that “ .. the is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet – subject though to the general principle that the employee should not be prejudiced.
Make no mistake, care must be taken when drafting allegations of misconduct in disciplinary cases.
CCMA and Bargaining Council Commissioners must conduct arbitration impartially, and in an unbiased fashion. When there is a perception of bias, a party can challenge the offensive conduct.
This is precisely what occurred in the recent Labour Court case between Dorothy Khosa v City of Johannesburg & 2 others [Case no: JR135/16]. As noted in the judgment, “The main grounds for this review is that it is contended that the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
It was further contended by the applicant that “the Commissioner failed to apply his mind, committed misconduct, was biased, committed a gross irregularity and/or acted unreasonably or unjustifiably and/or irrationally, in that he “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues.”
In supporting these assertions, it was further argued that “In support of these grounds, (the applicant contended) that the Commissioner failed to respect the roles of the parties’ respective representatives and assumed to himself the role of leading evidence and conducting cross-examination; that he failed to conduct the arbitration proceedings in a fair, consistent and even-handed manner; that the nature and scope of the Commissioner’s interventions were such that he failed to afford the parties a fair hearing, and that his conduct gave rise to a reasonable apprehension of bias.”
Apprehensions of bias occur frequently at the CCMA and bargaining Councils. Let’s face it, in every arbitration hearing there is a winner and a loser; the losers can be prone to blaming a one-eyed Commissioner for the loss, rather than facing up to the fact that they may have simply lost on the merits, or demerits, of their case.
The judgment noted that “in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and others as follows, ‘What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity. …” [2014 (35) ILJ 1528 (LC).
So, had the Commissioner “descended into the arena of the conflict between the parties and thus prevented himself from assessing with due impartiality the credibility of the witnesses and the probabilities relating to the issues”? Not so held the Court.
On the contrary, it was held that “The Commissioner was, on a holistic consideration of the record, even-handed and consistent in his approach in relation to questioning witnesses. He did not seek to undermine (applicant’s) case in soliciting the information he did. There is in the circumstances, no basis on which to conclude that a reasonable apprehension of bias arose.”
“(The applicant) had the onus to show that the Commissioner acted mala fide and in breach of his duties so as to afford City of JHB an unfair advantage. She failed to do.”
The judgment continued that “I believe that the Commissioner conducted the arbitration proceedings in a fair and proper manner. Where he intervened in the proceedings, it was simply for the purposes of clarity and to steer the process”.
Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his/her own eyes or senses, but heard from someone else.
Hearsay evidence is considered to be unreliable, problematic as the source of the evidence is not available for cross-examination, and often faulty as the witness may have mistakenly made an error in the interpretation of that communicated to him/her by the source of the information.
It is typically weak evidence, to be handled with caution, and includes statements of 3rd parties & documents.
The Law of Evidence Amendment Act (45 of 1988) tells us that hearsay evidence is “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”. It follows that hearsay evidence is generally inadmissible, but not always.
Schwikkard & van de Merwe, in Principles of Evidence (Second Edition; page 255) highlight that the fears associated with admission of hearsay, include “distrust of oral evidence reflected in the requirement that evidence is also problematic because the court is unable to observe the demeanour of the person who made the original statement. Another reason given for the exclusion of hearsay evidence is that it is secondary evidence and consequently not the best evidence.
The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (LAC: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence, in the context of disciplinary and arbitration hearings.
Section 3 of the Law of Evidence Amendment Act, says the judgment, “essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission”.
Importantly, the judgment notes that “Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all. This Court held ‘Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion–orientated and rigid rule–and–exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted’. This section still retains the ‘caution’ concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not”.
So, what does this mean for us in disciplinary and arbitration hearings? Well, for starters, it confirms that hearsay evidence is indeed admissible ‘if the interests of justice require it to be admitted’. Put differently, it is wholly incorrect to submit that hearsay evidence is always inadmissible. However, caution must always be applied.
The judgment also tells us that “The provisions of section 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence”.
The judgment went on to quote S v Ndhlovu and Other which “referred to safeguards to ensure respect for an accused’s fundamental right to a fair trial. Cameron JA pointed out that safeguards, including the following, were important: “First, a presiding judicial officer is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. More specifically under the Act, ‘it is the duty of a trial judge to keep inadmissible evidence out, [and] not to listen passively as the record is turned into a papery sump of “evidence”.’ Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained… Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court’s judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.”
In the final analysis, professional advice should be sought when evaluating whether hearsay evidence is, or isn’t, admissible in a given set of circumstances.