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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the consequences of misrepresentation by the employer.
We look at three cases: the first deals with how compensation is calculated by the courts. The second looks at the weight that should be given to the evidence of a single witness. The third case, dealt with more fully in the article, looks at misrepresentation by an employer that induces an employee to sign a settlement agreement terminating that person’s employment.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
What is compensation that is “just and equitable in the circumstances”?
In various sections of the LRA provision is made for an arbitrator or judge to award compensation that is “just and equitable in the circumstances”. It is important to know what factors are taken into account because this helps an employer to assess what compensation could be awarded and may kick-start settlement negotiations.
It’s worth looking at this issue through the facts of a recent case,The Minister for Justice and Constitutional Development & another v Tshishonga LAC (Case No: JA 6/2007 Date of judgment: 2 June 2009). The dispute between the parties arose after the employee made a number of disclosures to the media. The disciplinary enquiry found that the employee’s disclosures were “protected disclosures” as contemplated in the Protected Disclosure Act 26 of 2000 (PDA). You may recall that the PDA, which you will find under ‘legislation’ on Worklaw and which is also known as “the whistle blowers Act”, protects an employee who discloses the employer’s criminal activities or other such wrongs named in the Act
The employee sued for compensation for an “unfair labour practice” and legal costs arising out of a disciplinary enquiry. He claimed that in holding the enquiry the Department subjected him to an “occupational detriment” as defined in the PDA. (The Act defines an occupational detriment to include being subjected to disciplinary action). He also based his claim on the embarrassment and humiliation suffered by him, a Deputy Director-General in the Department of Justice and Constitutional Development, for being removed with immediate effect from the Master’s business unit, without any reason being given and thereafter being subjected to a suspension and subsequent disciplinary hearing. This embarrassment and humiliation also affected his family. He suffered further denigration by being referred to as a “dunderhead” by the then Minster of Justice on national television. The Minister went on to belittle the employee by saying that he is “the most timid public servant and at worst he is the sort of person who would not be able to box himself out of a wet paper bag”. The Minister went further to state that this statement could be printed. In the same television broadcast, the Minister said that the employee was rapped over the knuckles for poor work performance. It was claimed that there was absolutely no truth in this allegation. The employee also suffered gross humiliation by being moved to a position which was non-existent at the time, and thereafter for long periods he was kept in that position without any work or instructions coming his way.
On the basis of this treatment the employee argued that he was entitled to the remedies prescribed in the PDA, including compensation. When this matter came to the Labour Court the court found in favour of the employee and ordered the Department to pay twelve months remuneration. This decision was appealed to the Labour Appeal Court.
The LAC, which awarded R100 000 plus legal costs, held that where the LRA allows for compensation which is “just and equitable in circumstances” the factors which are relevant to the assessment of damages of damages generally include the following:
- the nature and seriousness of the ‘iniuria’ or wrong,
- the circumstances in which the infringement took place,
- the behavior of the defendant (especially whether the motive was honourable or malicious),
- the extent of the plaintiff’s humiliation or distress,
- the abuse of a relationship between the parties, and
- the attitude of the defendant after the ‘iniuria’ had taken place.
How reliable is a single witness?
There is an ancient rule of law called the ‘cautionary rule’. It cautioned a judge to be wary eg if the only evidence was that of a child, a woman who alleged rape or a single witness – no, not an unmarried person but the evidence of a witness that is not backed up by other witnesses. This applies mainly to criminal law cases and has been criticised and modified by legislation over the years. Earlier criminal cases found that the evidence of a single witness should only be relied up on if it is ‘clear and satisfactory in every material respect’. Subsequent cases modified this approach to say that whilst the evidence of a single witness should be approached with caution, it should be accepted if on a consideration of all the factors it was found that there was reasonable prospect of it being true.
So evidentiary rules tell us to be wary if a decision is made on the testimony of a single witness. But can an arbitrator reject a version of the story solely because it hinges on a single witness? This happened in the recent case of Barloworld Coachworks Wynberg v MIBC & others (LC Case No JR327/07; judgment 5 May 2009). An employee had been dismissed after having been charged and found guilty of misappropriation of company property. The arbitrator, using the cautionary rule, rejected one version on that basis and held that the employee’s dismissal was substantively unfair and ordered the reinstatement and payment of the equivalent of six months’ remuneration. This decision was taken on review.
The Labour Court held that the cautionary rule against a single witness cannot be applied as a general rule. If an arbitrator disallows evidence because there is only one witness, this will constitute a reviewable irregularity. Clearly this is correct. We are concerned however over the Labour Court’s statement (para 15 of the judgement) that the cautionary rule “has no place in civil/arbitration proceedings”. To the extent that it can be called a rule, we believe it does have application provided it is applied in its correct context. We suggest that the correct approach in dealing with the evidence of a single witness is simply this: be cautious, but accept the evidence of a single witness if on considering all the factors it is found to be probable.
This case is a reminder to use our common sense when assessing evidence. A single witness can be clear and convincing, while a group of witnesses who have colluded can give evidence lacking the ‘ring of truth’. The lesson is there however that to have a second witness who can corroborate the leading witness’s version can only strengthen your case.
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