Ithala Development Finance Corporation Ltd v Zulu and Others (D615/2020) [2023] ZALCD 13 (24 July 2023)

Ithala Development Finance Corporation Ltd v Zulu and Others (D615/2020) [2023] ZALCD 13 (24 July 2023)

The commissioner committed a reviewable irregularity by rejecting the applicant's witness evidence as inadmissible hearsay without applying section 3 of the Law of Evidence Amendment Act. The commissioner failed to assess the evidence in accordance with the applicable legal principles and treated the allegations as if they required proof beyond reasonable doubt, which is not the standard in arbitration proceedings. The evidence of Mr. Mkhize, when considered together with the direct evidence of other witnesses, established that the employee acted in conflict with the interests of the employer and was guilty of serious misconduct. The dismissal was substantively fair and the arbitration...

Citation
[2023] ZALCD 13
Parties
Applicant: Ithala Development Finance Corporation Ltd; Respondent: Clifford Siyabonga Zulu; Respondent: Commissioner Bess Pillemer N.O; Respondent: The CCMA
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
24 July 2023
Case Number
D615/2020
Procedural Posture
Review Application / Judgment on Review After Reinstatement of Withdrawn Review; Opposition Withdrawn; Review Application Determined
Outcome
Review application succeeds; arbitration award set aside and replaced with order that dismissal was substantively fair; no costs order.
Judges
GN Moshoana
Legal Topics
Unfair Dismissal, Admissibility of Hearsay Evidence, Law of Evidence Amendment Act, Arbitration Irregularity, Substantive Fairness, Commissioner Review
Labour Law Unfair Dismissal Admissibility of Hearsay Evidence Law of Evidence Amendment Act Arbitration Irregularity Substantive Fairness Commissioner Review

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Parties

Ithala Development Finance Corporation Ltd

Applicant

Clifford Siyabonga Zulu

Respondent

Commissioner Bess Pillemer N.O

Respondent

The CCMA

Respondent

Procedural Posture

Review Application / Judgment on Review After Reinstatement of Withdrawn Review; Opposition Withdrawn; Review Application Determined

Legal Issues

  1. 1 Whether the arbitrating commissioner was entitled to reject the evidence of the applicant's witness as inadmissible hearsay without applying section 3 of the Law of Evidence Amendment Act.
  2. 2 Whether the failure to consider hearsay evidence constituted a reviewable irregularity depriving the applicant of a fair hearing.
  3. 3 Whether the dismissal of the employee was substantively fair based on the evidence adduced.

Ratio Decidendi

The commissioner committed a reviewable irregularity by rejecting the applicant's witness evidence as inadmissible hearsay without applying section 3 of the Law of Evidence Amendment Act. The commissioner failed to assess the evidence in accordance with the applicable legal principles and treated the allegations as if they required proof beyond reasonable doubt, which is not the standard in arbitration proceedings. The evidence of Mr. Mkhize, when considered together with the direct evidence of other witnesses, established that the employee acted in conflict with the interests of the employer and was guilty of serious misconduct. The dismissal was substantively fair and the arbitration...

Court Disposition

Review application succeeds; arbitration award set aside and replaced with order that dismissal was substantively fair; no costs order.

Orders

  • The arbitration award issued by Commissioner Bess Pillemer under case number KNDB9219-18 dated 15 November 2020 under the auspices of the CCMA is reviewed and set aside.
  • It is replaced with an order that the dismissal of Zulu is substantively fair.