Moloko v Ntsoane and Others (JR1568/02) [2004] ZALCJHB 1 (20 April 2004)

Moloko v Ntsoane and Others (JR1568/02) [2004] ZALCJHB 1 (20 April 2004)

The court found that the arbitrator committed a gross irregularity by admitting hearsay evidence in the form of an unsworn statement from Ms Van Zyl, who was not called as a witness, and by relying on unauthenticated and poor-quality video footage that did not clearly show any assault. The applicant was denied a fair opportunity to challenge the evidence and was not afforded sufficient time to prepare for the disciplinary hearing. The employer failed to establish a valid reason for dismissal, and the procedures followed were unfair. The exclusion of the unreliable evidence left the employer with no proof of misconduct. Consequently, the arbitration award could not stand and was set aside.

Citation
[2004] ZALCJHB 1
Parties
Applicant: Moloko Salphina; Respondent: Commissioner Ntsoane Diale; Respondent: CCMA; Respondent: Hyperama (Mayville)
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
20 April 2004
Case Number
JR1568/02
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The dismissal of the applicant was both substantively and procedurally unfair. The applicant is to be reinstated. The counter-application is dismissed. No order as to costs.
Judges
Tokota
Legal Topics
Unfair Dismissal, Admissibility of Evidence, Natural Justice, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Admissibility of Evidence Natural Justice Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Moloko Salphina

Applicant

Commissioner Ntsoane Diale

Respondent

CCMA

Respondent

Hyperama (Mayville)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by admitting hearsay and unauthenticated video evidence.
  2. 2 Whether the disciplinary and arbitration procedures afforded the applicant a fair hearing.
  3. 3 Whether the dismissal of the applicant was substantively and procedurally fair.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by admitting hearsay evidence in the form of an unsworn statement from Ms Van Zyl, who was not called as a witness, and by relying on unauthenticated and poor-quality video footage that did not clearly show any assault. The applicant was denied a fair opportunity to challenge the evidence and was not afforded sufficient time to prepare for the disciplinary hearing. The employer failed to establish a valid reason for dismissal, and the procedures followed were unfair. The exclusion of the unreliable evidence left the employer with no proof of misconduct. Consequently, the arbitration award could not stand and was set aside.

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the applicant was both substantively and procedurally unfair. The applicant is to be reinstated. The counter-application is dismissed. No order as to costs.

Orders

  • The award made by the first respondent dated 19 August 2002 is reviewed and set aside.
  • The dismissal of the applicant was both substantially and procedurally unfair.