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.
All employees have a common-law obligation to their employers to promote and protect the interests of the employer, at all times. This includes informing management of any planned or actual acts of misconduct they have knowledge of. It could, for example, include knowledge of theft, pilferage and fraud.
That said, it’s widely known that employees are often ‘in the know’ when it comes to acts of misconduct committed by other employees, yet they don’t bring it to management’s attention. The reasons for not doing so are varied. An employee may consciously choose not to inform management of misconduct they are aware of, for fear of reprisals from the instigators. It is also quite possible that an employee will not divulge misconduct they are aware of, as they themselves have an axe to grind with the employer.
Regardless, employees have a positive duty to inform management of misconduct of which the employer may be unware; failure to do so is a material breach of such employee’s duty of good faith to their employer.
The CCMA and labour courts have dealt with derivative misconduct on numerous occasions. Earlier this year, the CCMA in Thabiso Ngakane v Wilmar (Pty) Ltd [GAJB9538-18] noted that “While a dismissal on the grounds of derivative misconduct has been sanctioned by the Labour Courts, the onus remains with the employer to prove that the employee was guilty of such misconduct. In that regard the employer would need to produce evidence that there was a reasonable probability that the employee had information that would assist the employer in identifying those guilty of misconduct, and had withheld such information”.
In yet another example, in NUMSA v Commissioner Leon Pillay & others [D02-17], the Labour Court described derivative misconduct as being “a case in which the employer wants to rely on misconduct that is not directly related to the employee’s own wrongdoing, but is based on the employee not providing information that is needed to identify other wrongdoers in circumstances where speaking up is required to maintain the trust relationship, that constitutes a quite distinct ground of misconduct, applicable in a context where not speaking up can destroy an employment relationship”.
The notion of derivative misconduct most recently came to a head in at the Constitutional Court which last month, on 28 June 2019, delivered judgment in the long-standing dispute involving NUMSA obo Khanyile Nkanezi & others v Dunlop & others [CCT202/18].
In short, a violent, protected strike commenced on 22 August 2019. Some perpetrators of violence could be positively identified, others could not. The CCMA Commissioner in the arbitration award noted that “The situation that prevailed in Induna Mills Road during the course of the strike was highly relevant to the derivative misconduct issue. If any of the applicants were present in the group of strikers who . . . [committed the acts of violence] they would either have been perpetrators of principal misconduct or be liable for derivative misconduct on the basis that they knew who the perpetrators of the misconduct were and failed to disclose that information to the respondent”.
In the final analysis, the existence, or otherwise, of derivative misconduct on the part of strikers who participated in the protected strike, but who could not be identified as perpetrators of violence, became the subject matter of a CCMA arbitration hearing, subsequent Labour Court and Labour Appeal Court cases, and ultimately a Constitutional Court matter.
The Concourt identified the source of the concept of derivative misconduct in highlighting that “ Although not mentioned by name as derivative misconduct, the roots of the doctrine lie in an obiter dictum (non-binding statement) by Nugent J in FAWU – In the field of the industrial relations, it may be that policy considerations require more of an employee than that he merely remained passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action” [Food & Allied Workers Union v Amalgamated Beverage Industries Ltd  ZALAC 1].
When all is said, and done, the ‘takeaway’ from the Concourt judgment is that whilst a derivative duty to disclose exists “As we have seen, this duty was sourced in the contractual duty of good faith without any reference to an employer’s reciprocal good faith obligations. In accordance with the conclusion employees’ safety should have been guaranteed before expecting them to come forward and disclose information or exonerate themselves. That was not sufficiently done”.
In short, this means that derivative misconduct, in strike scenarios, and probably all others, requires employers to ensure that employees who disclose knowledge of misconduct on their colleagues, are safeguarded from harm. This is perplexing for employers, as it now suggests that employees have a valid defence to derivative misconduct allegations, which relies solely on fear of intimidation or harm, regardless of the circumstances.
Over time, there has, to some degree, been conflicting law regarding the extent of the admissibility of polygraph test results in disciplinary hearings. More especially, this has related to whether an employer can rely solely on a failed polygraph test to prove the guilt of an employee on the balance of probabilities.
Employers are all too frequently of the mistaken impression that a failed polygraph test is quite enough to prove guilt; not so say our courts.
The recent Labour Court matter of Mustek v Tsabadi and others (case no. JR 2732/2010: Judgment day 2 March 2013) reiterates and reconfirms the extent to which polygraph test results may be utilised to prove guilt in disciplinary hearings.
In this case, eight laptop computers went missing from the employer’s premises. The employer elected to administer polygraph tests in regards all employees who had access to the area from which the laptop computers had gone missing. Four of the sixty-seven employees tested failed for the polygraph test, and were dismissed based on this evidence alone.
Judgment in this case emphasised certain important factors to be taken into consideration regarding the admissibility and extent to which polygraph test results may be utilised in disciplinary hearings. The Court held that “our Courts have approached the use of polygraph tests with much circumspection, and it is now accepted that the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities”.
It became apparent that in a separate arbitration hearing at the CCMA, another commissioner had in fact condoned the admissibility of the polygraph tests alone, and admitted this as sufficient evidence to prove guilt on the balance of probabilities. In the Labour Court judgment, the judge however noted that commissioners are not bound to follow awards of fellow commissioners, even if two separate arbitration hearings are faced with the same facts.
More especially, it was held that “it is factious to suggest that one commissioner should complacently endorse the finding of another commissioner were the two matters have their origins in the same incident. The rationale for the first commissioner’s decision has to be analysed. There can be any number of reasons why that commissioner arrived at the conclusion he did. To argue that a commissioner is bound by the findings of another commissioner is repugnant to the rules of precedent”.
The judgment continued that in essence, polygraph test results are indeed admissible, in disciplinary hearings, only insofar as they corroborate or support more direct evidence. It is quite clear that our law has established a now well established precedent that if the only evidence leveled against an employee is a failed polygraph test, it will never be sufficient proof in its own right to prove that the employee is guilty on the balance of probability. That is not to say of course that polygraph test results are inadmissible. On the contrary, they are. However, insofar as polygraph tests ought to be admitted in a disciplinary hearing, and indeed an arbitration hearing, such failed polygraph test results are only of value to the extent that, and insofar as they do, support more direct evidence introduced during the disciplinary or arbitration hearing.
When all is said, and done, polygraph test results have value as corroborating evidence only, and will never be sufficient as free standing evidence, to prove a case on a balance of probabilities.