A recent Labour Court judgment in City of Cape Town v South African Municipal Workers Union obo Lindani provides important guidance on how commissioners should assess evidence in dismissal disputes involving serious misconduct, particularly where a complainant is unavailable to testify.

The matter arose after an employee of the City of Cape Town was dismissed following allegations that he had kidnapped and raped a member of the public. At arbitration, the commissioner found the dismissal substantively and procedurally unfair and ordered reinstatement. The Labour Court reviewed and set aside the finding on substantive fairness, replacing it with a finding that the dismissal was fair. The finding of procedural unfairness remained intact, resulting in an award of one month’s compensation.

While the facts are unusual and serious, the judgment has broader significance for labour law, workplace discipline, and the assessment of evidence in misconduct proceedings.

 

The central issue

The key challenge facing the employer was that the complainant in the criminal matter could not be traced and therefore did not testify at arbitration.

The employer relied on the complainant’s statement, medical examination findings, and the investigating police officer’s evidence. The employee denied the allegations and ultimately advanced a version that the sexual intercourse had been consensual.

The commissioner admitted the hearsay evidence but nevertheless concluded that the employer had failed to prove the misconduct because the complainant was not available for cross-examination and because certain potential witnesses had not been called.

The Labour Court found this approach unreasonable.

 

The Court’s approach to hearsay evidence

One of the most significant aspects of the judgment is the Court’s treatment of hearsay evidence.

The Court confirmed that the admission of hearsay evidence does not end the enquiry. Once admitted, that evidence must still be weighed together with all other evidence and assessed against the probabilities.

The Court criticised the commissioner for effectively admitting the hearsay evidence but then discounting it because the complainant could not be cross-examined. In doing so, the commissioner failed to engage properly with the totality of the evidence before him.

The judgment serves as an important reminder that the absence of direct testimony does not automatically render an employer incapable of proving misconduct. Commissioners remain required to evaluate all admissible evidence and determine whether the employer has discharged the burden of proof on a balance of probabilities.

 

Credibility and consistency remain critical

Another notable feature of the judgment is the Court’s detailed analysis of the employee’s evidence.

The Court identified multiple inconsistencies in the employee’s various explanations. At different stages, the complainant was described as a girlfriend, an ex-girlfriend, and a person acting out of jealousy. Earlier versions put to witnesses suggested that the allegations were entirely fabricated, while later testimony admitted sexual intercourse but claimed that it was consensual.

The Court found that the commissioner failed to properly consider these contradictions.

Importantly, the Court emphasised that when faced with competing versions, a decision-maker must assess credibility, reliability, and probabilities. The commissioner had accepted the employee’s version without properly undertaking that exercise.

This judgment demonstrates how seriously courts may view material inconsistencies in an employee’s version when assessing credibility and probabilities.

 

The separation between criminal and disciplinary proceedings

The Court reaffirmed an important principle that is often misunderstood in workplace disciplinary matters.

An employer is not required to wait for the outcome of criminal proceedings before taking disciplinary action. Criminal and disciplinary proceedings serve different purposes and operate according to different standards of proof.

The fact that the criminal case had been provisionally withdrawn because the complainant could not be traced did not prevent the employer from pursuing disciplinary action.

This aspect of the judgment provides reassurance to employers dealing with serious misconduct allegations that workplace discipline need not be dependent upon a criminal conviction.

 

The significance of off-duty misconduct

The employee’s conduct occurred outside the workplace and did not arise directly from his duties.

Nevertheless, the Court recognised that allegations of serious criminal conduct, particularly conduct involving violence against women, may have implications for the employment relationship and an employer’s reputation.

The employer had led evidence regarding its policies, values and stance against gender-based violence. Although the Court’s ultimate finding turned primarily on the evidence and probabilities, the judgment reflects an appreciation that particularly serious off-duty conduct can justify dismissal where it affects the employment relationship.

 

Implications for employers

Do not assume that a disciplinary case must fail merely because a complainant is unavailable to testify.

Gather and preserve all available documentary and corroborative evidence as early as possible.

Carefully document and test inconsistencies in an employee’s version during proceedings.

Present evidence explaining why certain witnesses could not be called where this may become an issue.

Remember that disciplinary proceedings are distinct from criminal proceedings and require proof on a balance of probabilities.

Most importantly, employers should focus on presenting the complete evidentiary picture rather than relying on a single witness or piece of evidence.

 

Implications for employees and trade unions

A defence must be consistent from the outset. Material shifts in a version may significantly undermine credibility and damage the prospects of success.

Employees should also be aware that silence during disciplinary proceedings may have consequences later if a substantially different version is only introduced at arbitration.

Union representatives and employee representatives should ensure that the defence advanced throughout the disciplinary and arbitration processes remains coherent and aligned with the employee’s instructions.

 

Conclusion

The judgment is a significant reminder that labour disputes are ultimately determined on the totality of the evidence and the probabilities arising from that evidence.

The absence of a complainant does not automatically defeat an employer’s case. Similarly, admitting hearsay evidence does not mean it should be ignored when evaluating the overall probabilities.

For employers, the judgment confirms the importance of thorough investigations and careful evidence gathering. For employees and their representatives, it highlights the risks associated with inconsistent defences.

Perhaps the most enduring lesson from this case is that commissioners must engage with all the evidence before them. Where they fail to do so, even an arbitration award that appears plausible at first glance may not withstand scrutiny on review.

 

If you are dealing with a serious misconduct matter or need advice on disciplinary proceedings, contact Riona Kalua for guidance on navigating the process and protecting your position.

Written by Riona Kalua. This article is general information and reflects the law at the time of writing. It is not legal advice. For advice on a specific matter, please speak to us.