A commissioner’s decision to exclude from all consideration the hearsay evidence led by the applicant was made known to the parties only at the time when the award was handed down.  The commissioner’s failure to have dealt with the applicant’s reliance on hearsay evidence as aforesaid accordingly deprived the parties of a fair hearing.

NTE Company (Pty) Ltd v Ceppwawu obo Ngwenya and Others (D504/2021) [2023] ZALCD 1 (15 January 2023).

Case summary

This case, heard in the Labour Court of South Africa in October 2022, involves an applicant seeking to review and set aside an arbitration award issued by the third respondent, a CCMA commissioner, who found that the dismissal of an employee was substantively unfair and ordered that he be reinstated and receive back-pay in the amount of R30 395,43.

The applicant argued that the award was subject to review under Section 145 of the Labour Relations Act and that the CCMA commissioner who arbitrated the case had arrived at decisions that no reasonable decision maker could have arrived at, for the following reasons:

• he failed to rationally connect the award to the evidence,
• he failed to fully apply his mind to the evidence,
• he failed to correctly construe the evidence,
• he failed to consider vital evidence, and
• he failed to properly weigh up the evidence.

The application was unopposed.

The background of the case is that the applicant’s business is the manufacturer of a product known as Wattle Extract and, in the process, a by-product known as boiler ash is created.

At a point in time prior to February 2021, it became prohibited to give the boiler ash to the general public and it could only be given to approved parties. On 22 February 2021, the production manager received a call from a private individual who requested a delivery of boiler ash and informed the individual that this was impermissible. The individual questioned why it was still being delivered on weekends, leading the production manager to investigate and find two piles of boiler ash in a residential area.

The relevant employee was charged with breach of a lawful instruction and dishonesty for delivering the ash to the residential area without authorization, and denying that he had done so when asked. At the disciplinary enquiry, the employee was found guilty of misconduct and was found to have been dishonest in the course of his defence, leading to the recommendation of the sanction of dismissal.

The employee was dismissed on 18 March 2021 and a dispute was referred by the trade union CEPPWAWU to the CCMA on behalf of the employee, challenging the fairness of the dismissal.

The applicant led the oral evidence of three witnesses and introduced documentary and photographic evidence.

The witnesses whose reported oral statements were submitted as evidence had not been invited to attend the hearing, leading the employee in the case to challenge these statements as hearsay. The Court noted that the CCMA arbitrator had failed to properly address the issue of the admission of hearsay evidence.

The Court set out a series of steps that an arbitrator should take when dealing with hearsay evidence to ensure fairness to both parties, such as informing the parties of the significance of the evidence, timeously ruling on its admissibility, and explaining the consequences of the evidence being hearsay.

In this case, the arbitrator did not take these steps, which could have compromised the fairness of the proceedings.

The Court ruled that the matter be remitted to the CCMA.

Published by the Labour Guide