By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawvideos.co.za.
Relying on legally inadmissible evidence at the CCMA is like walking on a shaky tightrope without ever having acquired the necessary skill. The disastrous result is unavoidable. In the recent case of State Information Technology Agency Soc Limited (SITA) vs Daniel De Freitas and others (Case No: DA27/22, 26 March 2024) the Labour Appeal Court’s finding reinforced this view. De Freitas, a Senior Procurement Officer was fired by SITA firstly, for awarding a bid to a provider that had not attended a compulsory briefing session, and secondly, for awarding another bid to another provider that had not quoted in accordance with advertised specifications, resulting in the order being cancelled.
The CCMA arbitrator found that the dismissal was substantively unfair because the employer had failed to prove that De Freitas was guilty of the first charge, and because the penalty of dismissal had been too harsh in respect of the second charge. The Labour Court upheld the arbitrator’s award, and the employer appealed this decision.
The Labour Appeal Court (LAC) found that:
- The documents that the employer had relied on to prove De Freitas’s guilt were neither originals nor had been properly authenticated.
- Neither of the employer’s witnesses had direct knowledge of the alleged facts of the case, and their evidence was hearsay.
- The evidence presented by the employer was thus inadmissible.
- The employer had not satisfied its onus of proving that De Freitas’s dismissal had been fair.
As a result, the LAC:
- Upheld the decisions of the Labour Court and CCMA that the dismissal had been unfair; and,
- Upheld the CCMA’s award requiring the SITA to reinstate De Freitas retrospectively and to pay him R606 896.11 in backpay; and,
- Ordered the employer to pay the employee’s legal costs.
This is a classic example of a case where an employer:
- Spends a great deal of money, time and effort in dismissing an employee and trying to make it stick via the labour dispute resolution system and,
- Loses all the way along the line due to reliance on evidence that is not admissible in law and,
- Pays the price of having to reinstate the employee, pay him hundreds of thousands of rand in backpay and,
- Having to bear its own legal costs and those of the employee.
The all too frequent failure of employers to gather and present the necessary evidence to justify a dismissal is very often due to the lack of labour law knowhow of the employer’s management. The outcome of the SITA case described above proves that it is essential for employers to have a strong understanding of labour law.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE provides very inexpensive training that allows the managers of every employer to obtain the necessary knowhow, and to do so at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
