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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 employee in prison." We also discuss three new cases: The first case considers how an adjudicator should go about deciding diametrically opposed versions of the facts, and is a useful case for disciplinary chairpersons to consider. The second case rules on admitting hearsay evidence, and whether an employee is entitled to a polygraph test to prove his/her innocence. The third case asks if an employee automatically forfeits commission earned after resignation.

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


Deciding diametrically opposed versions of the facts

The LAC in Minister of Police v Safety and Security Sectoral Bargaining Council and others [2023] 3 BLLR 214 (LAC) held that, in determining whether allegations had been proved on a balance of probabilities, an arbitrator is required to have regard to the evidence presented, and, in diametrically opposed versions, resolve the disputes of fact. In balancing the probabilities, the task of a decision-maker is to select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones.

Two police officers were dismissed for bribery and corruption after a member of the public reported that they had demanded money from him to prevent a criminal investigation into whether he had been driving a stolen vehicle. The officers were subsequently caught red handed with marked bank notes which had been handed to them during an undercover operation. They were dismissed.

At arbitration at the Safety and Security Sectoral Bargaining Council the arbitrator found that the officers had been unfairly dismissed because the trap did not comply with the Criminal Procedure Act 51 of 1977, in that there was a discrepancy in the reference numbers used in the application for its authorisation. On review, the Labour Court agreed that the evidence led by SAPS about the entrapment had been inadmissible, and rejected their review application.

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Admitting hearsay evidence, allowing a polygraph test

In Roche v Lebaea and Others (C530/2021) [2023] ZALCCT 16 (17 April 2023) the court made two main findings: (1) It is not enough for an arbitrator simply to say that a discretion was exercised in admitting hearsay evidence, without explaining why s/he felt that the test for admitting this evidence favoured its admission. (2) To refuse an employee the opportunity to undergo polygraph testing to prove innocence is not a denial of a fair opportunity to present a defence, as a polygraph test is of tenuous weight and admissible only in support of other evidence.

Roche is a multinational pharmaceutical company providing DNA and rDNA testing kits. The employee in this case (cited as "L") was a logistics planner at the time of the events which gave rise to the charges for which she was dismissed. At the time there were two teams responsible for assembling test kits. L was the most senior member of one team. The detailed standard operating procedure for assembling the kits required each component item of a kits to be scanned and once the kit was complete, the kit itself would be scanned separately. L knew the standard operating procedure (SOP).

When video footage of the activities of L's team was scrutinised, it became evident that the SOP was not being followed. At the arbitration L submitted affidavits from other members of her team in which they claimed that they had started packing the kits without scanning them at a time when she was on leave, and that she was not aware that the assembled kits should be scanned when packed. Although these affidavits had not been canvassed with the employer's witness and amounted to hearsay evidence, the arbitrator decided to admit them as part of the record. The arbitrator did not refer to any of the principles governing the admission of hearsay evidence in deciding to admit the affidavits, and it was apparent that he admitted the evidence without considering them.

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Is an employee entitled to commission earned after resignation?

In Redelinghuys v Adapt IT (Pty) Ltd (C199/2019) [2023] ZALCCT 10 (27 March 2023) it was held that in the absence of a contractual term that employees forfeit any claim to commission when they have left employment, the employee's consent is required for any forfeiture of remuneration earned.

An employee who was employed on a salary and commission basis resigned from her employment. She was then informed for the first time that resignation triggered forfeiture of commission on deals already sold, but which had revenue flow after the employee's departure. She referred her dispute to the Labour Court which has jurisdiction in this matter in terms of s77(3) of the BCEA

Read more (Worklaw subscriber access only)

ARTICLE: The employee in prison

By Prof Alan Rycroft

One of the frequent questions we are asked on Worklaw's helpline is how to handle the situation where the employer gets news that an employee is detained in prison pending an investigation or trial, or as a sentence. There are usually two main questions:
  1. On what grounds should we take action against the employee?
  2. What constitutes procedural fairness in these circumstances?
In his article Prof Alan Rycroft considers these issues in light of the recent case of Ndzeru v Transnet National Ports Authority and Others (C369/2020) [2023] ZALCCT 11 (16 March 2023), which adds practical assistance. The employee in this case was a marine shore hand working at Cape Town harbour who, while absent from work, was involved in an attempted hijacking incident during which he said he had defended himself with his personal firearm and shot two persons. He was subsequently arrested and detained in Limpopo pending trial. He was twice refused bail.

Read more (Worklaw subscriber access only)


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Bruce Robertson
June 2023
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