Swiss South Africa (Pty) Ltd v Louw NO & others (2005) 14 LC 2.2.1

evidence – hearsay evidence – evidence amendment act, 1998 – e-mail in which one of the passenger’s had communicated his complaint – untested report – rejecting hearsay evidence on which employer relied to dismiss employee – dismissal unfair

Mini Summary

The applicant, a check-in agent of the respondent’s passenger division, was dismissed after having been found guilty of soliciting and accepting a bribe from passengers in return for not charging them the prescribed amount for excess baggage. The respondent commissioner ruled the dismissal substantively and procedurally unfair, and ordered the applicant to reinstate her with retrospective effect. On review, the applicant contended that the award was irrational and that, in particular, the commissioner had misdirected himself by not accepting as evidence an e-mail in which one of the passenger’s had communicated his complaint.

The court noted that after the respondent employee had given her version at the disciplinary hearing, the initiator had remarked that, although the employee had not been given an opportunity to cross-examine the applicant’s evidence, “cross-examination would not have made much difference”. Those proceedings had been initiated by a complaint from a passenger, who had sent the respondent an e-mail complaining that the employee had asked him for money. The employee had denied that the luggage of the passengers concerned was overweight. She had been singled out simply because she happened to be at the boarding gate when the same group of passengers had passed through after she had she checked their baggage earlier. A member of the group had pressed 20 dollars into her hand, which she was unable to return because of the rush at the boarding gate. The initiator had argued that the company did not permit staff to accept tips. The applicant had claimed that she intended to declare the tip to her supervisor, but had forgotten to do so.

The court noted further that the procedure adopted at the arbitration hearing was informal; none of the witnesses had given evidence under oath, but the applicant’s representative was given an opportunity to cross-examine the employee after she had given her version. The applicant’s representative, in turn, had merely stated the version set out in the e-mail from one of the passengers upon which the initiator in the disciplinary hearing had relied proved the commission of the offence.

The court held that, while the procedure followed at the disciplinary inquiry was “less than perfect”, this had not resulted in a failure of justice. However, the applicant’s main complaint was that the commissioner had erred by finding that the applicant was unable to prove the facts contained in the e-mail upon which it had relied in the disciplinary hearing. The court held that, with the exception of circumstances envisaged in the Evidence Amendment Act 45 of 1998, hearsay evidence is inadmissible in civil and criminal proceedings. Since arbitration proceedings held under the auspices of the CCMA are neither criminal now civil proceedings, it was unlikely that the legislature should expected commissioners to apply a stricter test for hearsay than that envisaged in the Evidence Act. The commissioner had correctly applied the Act. The applicant had given no reason why the passenger could not have been called to testify personally. Admission of his e-mail as evidence would have been highly prejudicial to the employee. The applicant had acted on the e-mail in the full knowledge that it would result in a dispute of fact. It would have been totally unfair to deprive the applicant of her livelihood on the basis of an untested report. The admission of hearsay evidence would accordingly not have been in the interests of justice. Furthermore, the employee’s version was not so improbable that it fell to be rejected. The act of receiving a tip was did not constitute misconduct.

The application was dismissed.