Public Newsletter


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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 issues which arise when staff resign. We also look at three new cases: the first dealing with the fundamental nature of cross-examination in disciplinary enquiries; the second deals with the proof required to establish intoxication; and the third deals with whether graffiti constitutes sexual harassment.

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


Is cross-examination essential in a disciplinary enquiry?

If in a disciplinary enquiry an employer decides that no purpose will be served by cross-examination of witnesses, does this render the procedure unfair? This arose in Afrox Ltd v BCCI & others (2006) 27 ILJ 1111 (LC). In an internal disciplinary enquiry the employee was not given the opportunity to cross-examine two other employees directly involved in the act of misconduct. The employer contended that the cross-examination would have served no purpose as their evidence would simply have weakened the employee’s case. The Labour Court found that cross-examination is fundamental. The employer had overlooked the undisputed fact that the employee had been provoked and the two other employees had acted out of revenge after being reported for a breach of safety standards. Cross-examination could have led to establishing serious mitigating factors which could have prevented dismissal. The Labour Court found that this rendered the procedure unfair.

Proving intoxication

How ‘professional’ does an employer have to be in proving how much, if any, alcohol has been consumed by an employee? Is observation of behaviour sufficient? Is a blood test necessary or will a breathalyzer test be sufficient?

In Exactics-Pet (Pty) Ltd v Patelia NO & others (2006) 27 ILJ 1126 (LC) an employee was dismissed following charges of being intoxicated at work. He had smelt of alcohol, swore and was incoherent. A breathalyzer test was taken which established that the alcohol in his bloodstream was well above the permissible statutory limit. An arbitrator had disregarded the breathalyzer test and had found that the dismissal had been unfair because there was insufficient evidence establishing intoxication, particularly as the employee had returned to work in the two hours before the results of the test came out.

The Labour Court held that as there was no evidence suggesting that the breathalyzer test was defective or inaccurate, the arbitrator should have accepted the results as reliable evidence. The arbitrator had set the standard of proof too high – an employee does not have to be tested by police to establish intoxication. Where an employer uses two tests – the observation test and the breathalyzer test, this will be sufficient to establish intoxication even though the employer cannot prove how much alcohol had been consumed.

When is graffiti sexual harassment?

In Numsa on behalf of Prezens and Duferco Steel Processing (Pty) Ltd (2006) 27 ILJ 1282 (BCA) an employee was accused of writing derogatory, insulting and sexually explicit graffiti referring to a female employee, on the wall of the men’s toilet at work. He was dismissed for sexual harassment. The employee denied all knowledge of the graffiti. The employer relied on the evidence of a handwriting expert who identified the employee (out of 160 employees) with a high probability of 95%. This, together with other factors, convinced the employer of his involvement. At the arbitration it was held that, on a balance of probabilities, the employee was the author of the graffiti.

The arbitrator found that the graffiti was sexually provocative, undesirable and harassing, and fell within the company’s code on sexual harassment. As the employer had a positive duty to create an environment free of sexual harassment and to protect vulnerable employees, dismissal was a reasonable sanction.


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Bruce Robertson
July 2006
Copyright: Worklaw