- Court finds dismissal decision relied on inadmissible hearsay about a final written warning.
- Arbitration award overturned and matter sent back to the Commission for Conciliation, Mediation and Arbitration for a fresh hearing.
- Judge stresses that employers must properly prove misconduct history before imposing dismissal.
Patrick Thembalethu Swartbooi thought his case had ended when an arbitrator ruled that his dismissal was fair. The driver had already lost his job, his income, and the stability that comes with steady work. Now, months later, he has been handed something rare in workplace disputes: a second chance.
In a decision of the Labour Court in Gqeberha, Judge MZN Lallie found that the arbitration outcome against Swartbooi could not stand because it relied on evidence that should never have been accepted in the first place. A supposed final written warning, used to justify dismissal, was never properly proved. Without that warning, the fairness of the sanction was on shaky ground.
Missed reporting rule leads to dismissal
Swartbooi had worked as a driver for Compass Medical Waste Services since 2020. The company required drivers to notify their supervisor before the start of a shift if they were going to be absent.
On the day in question, he did not inform his supervisor directly. Instead, he told another colleague, explaining later that there was bad blood between him and the supervisor. By the time he reported his absence, his shift had already started. At arbitration, he conceded the rule had not been followed.
Judge Lallie was clear that this part of the case was straightforward: “Employees must comply with rules of conduct at the workplace,” the judgment states. Workers who feel mistreated by a supervisor have the right to lodge a grievance, but they cannot simply ignore established procedures. On that issue alone, the employer appeared justified.
The warning that changed everything
The employer argued that dismissal was appropriate because Swartbooi already had a final written warning on file for the same offence. That history painted him as a repeat offender and tipped the scales toward termination.
The problem was that no one could actually prove the warning had ever been issued or communicated to him. The company’s only witness testified that she found the warning document in his personnel file. She had not issued it herself and had no personal knowledge of how or when it was created. Swartbooi denied ever receiving it. The judge found that this amounted to hearsay.
“The document the third respondent relied on … constituted hearsay evidence because it was not authored by the witness,” the court said. “As a general rule hearsay evidence is inadmissible because it is unreliable.”
Because the employer carries the legal burden to prove dismissal is fair, it had to produce proper, admissible evidence that the warning existed and had been given to the employee. It failed to do so.
“The commissioner erred in admitting the inadmissible hearsay evidence,” the judge wrote, adding that “the error had a direct impact on her decision that the dismissal was substantively fair.”
A flawed arbitration
Judge Lallie explained that an arbitration award can be reviewed where a commissioner “misconceived the nature of the inquiry or arrived at an unreasonable result.”
Here, relying on unproven documents meant the decision about the sanction was built on sand. “The third respondent had to lead admissible evidence proving that the final written warning had been issued. It failed to do so,” the court held.
Without that aggravating factor, the conclusion that dismissal was fair could not safely stand. “The gross irregularity constituted a defect which requires that the decision … be reviewed and set aside.”
Instead of deciding the case itself, the court ordered that the matter return to the Commission for Conciliation, Mediation and Arbitration to be heard afresh by a different commissioner.
Back to the CCMA
In practical terms, both sides start again. The employer can try to prove its case properly. Swartbooi can argue that dismissal was too harsh.
The court also made no costs order, noting that the company had not acted unreasonably in defending an award that had initially favoured it.
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