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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 by Alan Rycroft discussing the changes resulting from the new CCMA Rules that came into effect on 1 January. We also discuss three new cases: The first case deals with how an arbitrator should handle hearsay evidence. The second case considers discrimination and the normal retirement age, and the third case looks at when it is appropriate to overturn a disciplinary sanction on appeal.

This public newsletter is a free edited version of the subscriber newsletter.


Hearsay evidence and the absent witness

When a witness's knowledge of events derives from having heard that version from another person, his/her evidence on that issue would be described as 'hearsay'. Broadly speaking hearsay evidence is of little assistance as, even if it is admitted by the chair / arbitrator, it will be given little or no weight if it is competing with a version which has been testified to by a witness who gives evidence at the enquiry. So, even if it passes the 'admissibility' hurdle, it will probably fall down at the 'credibility' hurdle.

The primary reason for the exclusion of hearsay was its general unreliability - the fact that it rests for its evidential value on the untested memory, perception, sincerity and narrative capacity of a person who was not subjected to the oath, cross-examination or any of the other procedural devices. In law generally hearsay evidence should be avoided.

Here is a case which illustrates the problems of accepting hearsay evidence: The employee, a SAA customer service agent, was dismissed on three counts of misconduct, all relating to an incident involving a passenger who was travelling on a flight to Lagos. The charges were soliciting a bribe, corruption and bringing the name of the SAA into disrepute.

The passenger gave evidence at SAA's internal disciplinary hearing, but, despite SAA representing that she would be a witness, she was not present at the CCMA arbitration. SAA relied on her evidence in affidavit form, together with that of 3 witnesses, none of whom heard the employee asking for a bribe but who were told about it by the passenger. The passenger told them that she knew that she had two pieces of extra luggage and was prepared to pay for both of them, but the employee at the check-in counter has only written on the receipt that she had to pay for one piece. She told them he had said she should pay for one piece of excess luggage and to put R 200 or R 250 in her passport when she brought it back to him. The passenger sent an e-mail on the following day complaining about the incident.

The employee's explanation as to why he wrote one piece of luggage on the slip when the passenger had indicated that she had two pieces of excess luggage, was that the passenger had said she did not have enough money to pay for two pieces, and would leave one behind with someone who had accompanied her to the airport. The arbitrator found that the employee's version was improbable as the passenger ultimately paid for two pieces of luggage, which contradicted the version that she only had funds to pay for one piece.

The Labour Court in Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13 (22 January 2019) was critical of the CCMA arbitrator's approach in that, whilst being aware that the evidence was hearsay evidence, simply looked at the evidence in its totality, finding the employee's version highly improbable compared to the 'probable, coherent and unambiguous' evidence of SAA's witnesses. Instead, the Labour Court said, the commissioner should have strictly followed the approach required in the Law of Evidence Amendment Act of 1988 when dealing with hearsay evidence. What the court required was that the arbitrator needed to consider each and every one of the factors listed in s 3(1)(c) of that Act before allowing the hearsay evidence to be used.

The court did offer a possible approach to parties who can't bring a witness to the arbitration. It said that the fact that the employee had the opportunity to cross-examine the passenger at the disciplinary hearing was regarded as of no consequence, because the arbitration was a hearing de novo. This difficulty could have been overcome if the transcript of the disciplinary hearing was presented and the parties had agreed that the entire transcript should be regarded as evidence before the arbitrator, in which event the entire record could be considered and accepted as if it were evidence that was adduced before the arbitrator.

SAA was offered a second try: The Labour Court ordered that the arbitration award be set aside and the dispute was remitted to the CCMA for a hearing de novo before a different arbitrator.

This case is a reminder that before hearsay evidence can be admitted as evidence, all the factors listed in section 3(1)(c) of the Law of Evidence Amendment Act must be assessed according to the circumstances of the case. Despite s138(1) of the LRA saying that arbitrators must determine disputes fairly and quickly and with a minimum of legal formalities, this case is a further example of the courts requiring arbitrators to adhere to strict rules of evidence.

Discrimination and the normal retirement age

Let's start with the law: Section 187(2)(b) of the LRA provides that a dismissal based on age is fair if the employee has reached the 'normal or agreed retirement age' for persons employed in that capacity. There have been quite a few cases about when a retirement age is 'normal', but in a recent case the employer argued that the normal retirement age was derived from regulations made by an agency independent of the workplace.

A commercial air transport operator employed only two pilots who both turned 60 in the same year. The employment of both pilots was governed by the Civil Aviation Regulations, which prohibit pilots over the age of 60 years from piloting international air transport operations except as a member of a multi-pilot crew, the remaining members of whom are under 60.

This dilemma resulted in the employer informing one employee, H, that he had employed another pilot and that his services would not be required after three months. H referred a dispute to the CCMA claiming that he had been unfairly dismissed for operational requirements. The commissioner ruled the dismissal substantively and procedurally unfair and ordered the employer to pay H compensation equal to three months' salary plus severance pay.

At the Labour Court the employer's application for review of the award was dismissed. The employer had argued that H's employment had terminated because he had reached the normal retirement age for a co-pilot.

The Labour Appeal Court in Joffe t/a J Air v Commission for Conciliation Mediation and Arbitration and Others (JA84/2017) [2018] ZALAC 44; [2019] 1 BLLR 1 (LAC) (7 June 2018) noted that the LRA provides that a dismissal based on age is fair if the employee has reached an agreed or normal retirement age for persons employed in the same capacity. The employer did not have an agreed retirement age for its pilots; it relied exclusively on the regulations. The regulations do not prohibit a pilot who has attained the age of 60 from flying on international commercial flights; they merely attach conditions to them doing so. The regulations even make provisions for pilots who have turned 65 to fly under certain conditions. The argument that the regulations set a normal retirement age for co-pilots was regarded by the court as absurd.

The LAC held further that the employer had not consulted over alternatives suggested by H that might have saved his job. His dismissal was both substantively and procedurally unfair. The appeal was dismissed with costs.

This case sets this principle: Where official regulations set conditions affecting continued employment for those over the age of 60, they do not automatically impose a 'normal retirement age' justifying dismissal. They simply set conditions which must be met in the event there is continued employment.

When a disciplinary sanction is overturned on appeal

When can an appeal tribunal overturn the decision of the chair of a disciplinary tribunal? Are there factors which overrule dismissal for serious misconduct? This was the issue in a recent case.

The employee, M, was found guilty by a disciplinary tribunal of contravening various provisions of the SAPS Discipline Regulations for: (i) making false entries regarding his attendance; (ii) absenting himself from work without reason or permission; (iii) failing to carry out a lawful order or a team instruction by not handing in a sick certificate; and (iv) failing to report on duty and to attend the morning parade.

In relation to sanction, M put forward various mitigating factors, namely: (i) his wife had instituted divorce proceedings against him; (ii) he had developed a drinking problem and went for psychological treatment and was admitted to a rehabilitation centre from which he was discharged, a few weeks before his misconduct; (iii) his condition deteriorated and he suffered from depression and stress at the time of the misconduct; (iv) he was receiving psychiatric treatment; (v) his condition caused him to make bad decisions; and (vi) his girlfriend was pregnant.

The employer listed the following aggravating factors: (i) the misconduct involved dishonesty; (ii) the misconduct was committed after he left the rehabilitation centre; (iii) he showed no remorse; (iv) previous attempts to solve the problem by introducing reporting requirements had not worked; (v) he had a written warning that was imposed for absence from duty; and vi) the trust relationship had broken down.

The disciplinary tribunal imposed the sanctions of dismissal in respect of the charge related to the false entries in the register and final written warnings in respect of the other charges.

M's union, POPCRU, noted an appeal. The appeal authority confirmed the verdict of guilty on all the main charges and was satisfied that the case against M had been proved on a balance of probabilities. However, it chose to reverse the sanction of dismissal in respect of the first charge and replaced it with dismissal suspended for a period of six months. It also reversed the three final written warnings in respect of the remaining charges, combined them for the purposes of sanction, and imposed a combined fine of R500.

The appeal authority was not convinced that the misconduct warranted a sanction of dismissal for three reasons: (i) there were unfair delays in the disciplinary process; (ii) insufficient weight was given to mitigating factors; and (iii) the evidence did not establish that the employment relationship had irretrievably broken down.

The Labour Court dismissed the employer's application in terms section 158(1)(h) of the LRA seeking a review of the disciplinary sanction imposed by the appeal authority.

The Labour Appeal Court in National Commissioner of South African Police Service and Another v Mphalele N.O. and Another (CA15/2017) [2018] ZALAC 42 (11 December 2018) found that the LC had failed to deal with the contention that the appeal authority irrationally failed to appreciate and take into account the seriousness of this kind of misconduct by someone in the position of M. The decision of the appeal authority was set aside and was substituted with a decision upholding the decision of the disciplinary tribunal.

The LAC was clear: Dismissal is the only sensible and rational operational response where an employee (who is required to observe the highest standard of integrity, good faith, honesty and reliability) acts fraudulently and dishonestly.

ARTICLE : Changes to the CCMA Rules By Prof Alan Rycroft

Without much (or any) publicity, new CCMA rules have been published and came into effect on 1 January 2019 (Published under Government Gazette 42092 of 7 December 2018.) The new Rules can be found on under Worklaw's legislation section.

The main (but not the only) changes affect the following areas:
  • How to file documents with the CCMA;
  • How the CCMA notifies parties;
  • new functions of the CCMA - eg NMW enforcement;
  • Pre-arbitration conferences;
  • Legal representation;
  • Joinder and Consolidation;
  • Applications.

Read more (note - only available to Worklaw subscribers)

About Worklaw's services

Worklaw is an online labour law advice and information subscription service - see Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.

Bruce Robertson
February 2019
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