Tempest Car Hire v Lebyane and Others (JR50/22) [2024] ZALCJHB 283 (1 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case No: JR 50/22

In the matter between:

TEMPEST CAR HIRE, A DIVISION

OF MOTUS GROUP LTD

Applicant

and

PUSELETSO LEBYANE

First Respondent

COMMISSIONER MANDLENKOSI ZWANE Second Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Third Respondent

Heard: 30 April 2024

Delivered: 01 August 2024

JUDGMENT

Molotsi, AJ

Introduction

[1] This is an application for review in terms of section 145 of the Labour Relations Act[1] (LRA). The second respondent (the commissioner) issued the arbitration award on 7 December 2021.

[2] The commissioner concluded that the dismissal of the first respondent (the employee) was substantively unfair and ordered the applicant to reinstate the employee retrospectively with back pay.

[3] The applicant launched the review application on 18 January 2022 after the arbitration award came to its attention on 21 December 2021.

The relevant facts

[4] The applicant conducts business in the vehicle hire sector. The employee was employed by the applicant as a customer service agent. On 11 March 2021, Ms. Tasha Moodley, an employee of the applicant, went to work not feeling well. She was feeling lightheaded, and she decided to sit down in the kitchen. She advised all her colleagues that she was not feeling well and further told them to call her when it gets busy. Ms Moodley also told the employee that she was not feeling well.

[5] The employee then uttered the following words to Ms Moodley “you should die”. After a few seconds, the employee then said she was joking. This happened whilst they were both in the kitchen and no other person was present.

[6] Ms Moodley then lodged a grievance against the employee. The grievance hearing was chaired by Ms Annette Venter. The grievance hearing was held on 16 April 2021. During the grievance hearing, the employee admitted that she said to Ms Moodley that she should die.

[7] The outcome of the grievance hearing was framed as follows:

‘What transpired on the 11 March 2021 is a very serious matter and cannot be disregarded. It is evident that there is a relationship issue between Tasha (Ms Moodley) and Puseletso (employee), thus a total lack of respect towards each other, the leaders and the business.

It can be said that even though Puseletso’s behaviour was not life threatening it was offensive. In line with the Companies code of Conduct- offensive behaviour is a serious misconduct and for that reason the matter will be escalated to the HR department to deal with this incident in line with the companies code of conduct.

Tasha’s resignation will be discussed with her outside the grievance procedure.’

[8] The employee was issued with the notice to attend a disciplinary hearing on 18 May 2021 and the hearing was held on 24 May 2021. The employee was charged with:

‘Offensive and unacceptable behaviour towards a colleague on 11 March 2021- in that during a discussion with a colleague, you uttered words to her that she should die.’

[9] The employee was found guilty and dismissed by the applicant on 25 May 2021. The employee lodged an appeal, and the appeal outcome was issued on 28 June 2021 upholding the dismissal.

[10] The employee referred an unfair dismissal dispute to the third respondent (the CCMA) on 1 July 2021 and the arbitration proceedings took place on 23 November 2021. Ms Moodley did not testify during the arbitration proceedings. The applicant’s witnesses in the arbitration were Ms Annette Venter and Ms Tshegofatso Monnapula.

Grounds of review

[11] The applicant's grounds of review are the following: The commissioner failed to apply his mind to the evidence that the behaviour of the employee was offensive and not tolerated in the workplace. Furthermore, the commissioner failed to apply his mind to the evidence of Ms Venter that Ms Moodley was traumatized and that the relationship was toxic. The evidence of Ms Venter was not hearsay.

[12] The commissioner failed to apply his mind to the evidence of Ms Monnapula that there was a history of friction between the employee and Ms Moodley and that the conduct of the employee on 11 March 2021 led to Ms Moodley's resignation and she was intimidated.

[13] The commissioner’s arbitration award was not an award of a reasonable decision maker in that:

13.1. A reasonable decision maker would not conclude that the resignation of Ms. Moodley was premised on other reasons in the absence of such evidence.

13.2. A reasonable decision maker would not find that the utterance was not meant to be offensive or inflict any pain on Ms Moodley in the face of her apology.

13.3. A reasonable decision maker would not conclude that Ms Moodley made a mountain out of a molehill regarding the event of 11 March 2021.

Submissions by the parties

[14] Ms Pillay on behalf of the applicant submitted that the arbitration award of the commissioner was unreasonable. On 11 March 2021, the employee uttered the words “you should die” to Ms Moodley. Ms Moodley went to Ms Monnapule crying and the probability was that the employee did utter offensive words to Ms Moodley. The employee admitted that she uttered offensive words to Ms Moodley. The admission by the employee was made to Ms Monnapule. However, the commissioner considered the evidence of Ms Monnapule as hearsay evidence. Ms Monnapule’s evidence was not hearsay evidence.

[15] The commissioner rejected the version of the applicant before he engaged in the assessment of evidence and probabilities.

[16] Mr Letsholo on behalf of the employee submitted that the employee showed concern for Ms Moodley on 11 March 2021. The employee said to Ms Moodley “she could die”. Ms Monnapule was not sure whether the employee uttered the offensive words to Ms Moodley. Ms Monnapule’s evidence was approached with caution by the commissioner. The fact that Ms Moodley did not testify during the arbitration proceedings left the commissioner with little to work with.

The arbitration award

[17] The commissioner made the following findings ostensibly in respect of the credibility of witnesses who testified at the arbitration proceedings. At paragraphs 45 - 47 of the arbitration award, the commissioner stated:

‘[45] I found the Employee and Ms Monnapula to have been credible witnesses albeit they were not ideal. They made some contradictory remarks which were corrected upon further probing. Thus, it seemed to me that the nerves got the better of them while they were on the stand. The Employee was such an impressive witness that she even admitted to what another could have sought to conceal, in that there was bickering that characterized her relationship with Ms Moodley.

[46] It was Ms Venter whose credibility was placed in doubt before me in that she displayed too bias an intent in her testimony in that she said in her evidence that the conduct of the Employee was threatening to the life of Ms Moodley, yet in her report on the incident she had said that the Employee’s conduct was not life-threatening. She failed to give an account for this discrepancy while she was on the stand.

[47] I cannot accept Ms Venter and Ms Monnapula’s to be reliable in relation to their testimony regarding the incident that led to the Employee’s dismissal since they were not present or close to the area where it occurred. They relied on what they were told in coming to a view of what happened on that day.’

[18] The commissioner in rejecting the evidence of the applicant made the following finding at paragraph 59:

‘I must determine whether the Employee had contravened such a rule or standard. It was not disputed that the witnesses that the Employer

called were not present when the incident of 11 March 2021 took place. They both relied on what they were told by Ms Moodley as being the words that Ms Lebyane said to her in the kitchen. I must agree with the Employee that the evidence of Ms Venter and Ms Monnapula cannot be admitted as it amount to hearsay and no case was made as to why I should admit their evidence in terms of section 3(1) of the Law of Evidence Amendment Act 45 of 1998.’

Evaluation

[19] The grounds of review submitted by the applicant are essentially that the commissioner failed to apply his mind to the evidence before him and therefore arrived at an unreasonable outcome.

[20] The test for review is settled. In Sidumo and another v Rustenburg Platinum Mines Ltd and others[2] the Constitutional Court held that the standards as contemplated by section 33 of the Constitution are to be blended into the review

grounds in section 145(2) of the LRA and that “the reasonableness standard should now suffuse s 145 of the LRA”. The threshold test for the reasonableness of an award is whether the decision reached by the commissioner is one that a reasonable

decision-maker could reach.

[21] In Herholdt v Nedbank Ltd (Congess of SA Trade Unions as Amicus Curiae)[3], the Supreme Court of Appeal held that:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the

proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside but are only of any consequence if their effect is to render the outcome unreasonable.’

[22] Furthermore, the LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation, Arbitration and others[4], the Court held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her: evaluated the facts

presented at the hearing and came to a conclusion that is reasonable.’

[23] In Head of Department of Education v Mofokeng and others[5], the LAC held that:

‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result.’

[24] The reviewing Court must look at all the material evidence before the commissioner to determine whether the award is one which a reasonable decision maker could arrive at.

[25] One of the important duties of a commissioner in arbitration proceedings is to resolve the factual disputes between the parties. The commissioner must demonstrate the reasons for accepting one version over the other version. This requires a proper assessment of evidence before him. In the process of assessment, the commissioner must determine the credibility of the witnesses who testified before him, the reliability of their evidence, the probabilities or improbabilities of the two versions.

[26] The two versions that the commissioner was faced with were whether the employee uttered the words “you should die, or you could die”.

[27] In Sasol Mining (Pty) Ltd v Ngqeleni NO and others[6], this Court held that:

‘[7] Regrettably, the commissioner’s logic (or more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact - their awards comprise an often-detailed summary of the evidence, followed by an ‘analysis’ that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as then was) observed in Lukhanji Municipality v Nonxuba NO & Others (2007) ILJ 886 (LC); (2007) 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.

[8] In SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA), the proper approach to the resolution of factual disputes was explained by the Supreme Court of Appeal (per Nienaber JA) in the following terms at para 5:

‘On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness- box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness ‘reliability will depend, apart from the other factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall therefor. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of the assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.’

[28] The commissioner was aware of the task of resolving the factual dispute. However, the process he undertook in resolving the factual dispute was wrong and he failed to use the tools necessary in resolving the factual disputes. He simply failed to engage on the proper assessment of evidence.

[29] The commissioner only focused on credibility and did not deal with probabilities or improbabilities of the different versions, failed to take into consideration that the evidence of the applicant’s witnesses corroborated each other, and failed to establish the reliability of the evidence of the witnesses.

[30] There was no proper reasoned credibility finding by the commissioner. The commissioner appears to have rejected the version of the applicant before assessing the evidence. There is no discernable process or methodology adopted by the commissioner in resolving the factual disputes. This constitutes gross irregularity. The credibility finding of the commissioner was plainly wrong and seriously flawed. Findings on credibility cannot be judged in isolation but require to be considered in the light of proven facts and the probabilities of the matter under consideration[7].

[31] The credibility finding in respect of Ms Venter only focused on what she testified about in the arbitration and what her grievance report stated. She testified that the conduct of the employee was life-threatening whereas in her report she stated that the employee’s conduct was not life-threatening. This the commissioner considered to be enough to conclude that Ms. Venter was too biased.

[32] Ms Venter may not have been satisfactory in respect of whether the conduct of the employee was life threatening or not. However, it did not mean that she was not a credible witness. Not every error by a witness and not every contradiction or deviation affects credibility of a witness. In Santam Bpk v Biddulph, that:

‘However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of

probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 at 556 and H C Nicholas ‘Credibility of Witness’ (1985) 102 SALJ 32 especially at 32 – 35).‘

[33] In S v Mkohle[8], the Appellate Division held that:

‘Contradictions per se do not lead to the rejection of a witness’ evidence… [T]hey may simply be indicative of an error… [N]ot every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness’ evidence.’

[34] Ms Venter contradicted herself once during the arbitration proceedings. The nature of the contradiction in respect of whether the conduct of the employee was life-threatening or not, did not overlook her other evidence that Ms Moodley was not happy with the conduct of the employee on 11 March 2021; that the applicant has a duty to make the working environment safe, Ms Moodley lodged a grievance against the employee and her other evidence was corroborated by Ms Monnapula in that the employee admitted to having

uttered the offensive words to Ms Moodley.

[35] The commissioner’s finding that Ms Monnapula was a credible witness and yet, on the other hand, came to a finding that Ms Monnapula’s evidence was not reliable in relation to the incident that led to the employee’s dismissal since Ms Monnapula was not present in or close to the area where the incident occurred, illustrate the unreasonableness of the award.

[36] There is a lack of logic in this finding. It is difficult to decipher the commissioner’s finding that Ms Monnapule’s evidence was credible albeit not ideal. The evidence of Ms Monnapule was ideal and satisfactory in all respects. Her evidence stood under cross-examination. Her evidence was accordingly reliable. The fact that she was not present when the incident happened between the employee and Ms Moodley did not mean that her evidence was not reliable.

[37] Because of the wrong assessment of evidence and failure to resolve the factual disputes before him, the outcome of the arbitration proceedings was materially influenced by an incorrect assessment of the evidence. As a result, an unreasonable award was issued by the commissioner. There is a link between the wrong assessment of evidence and the outcome of the arbitration award.

[38] The wrong credibility findings made by the commissioner against the applicant’s witnesses influenced the outcome of the arbitration. This constituted gross irregularity on the part of the commissioner.

[39] The commissioner failed to consider the following material evidence which was before him: (i) Ms Venter was approach by Ms Moodley immediately after the incident and Ms Moodley informed Ms Venter that the employee said to her “she should die”, (ii) Ms Moodley lodged a grievance against the employee for saying she should die, (iii) Ms Venter chaired the grievance hearing, (iv) during the grievance hearing, the employee admitted uttering the offensive words to Ms Moodley, (v) after the grievance hearing, the employee was subjected to a disciplinary hearing, (vi) in terms of the applicant’s disciplinary code dismissal is an appropriate sanction for the conduct which the employee was charged with, Ms Moodley resigned as a result of the conduct of the employee and she went back to Durban to her family to get support, (vii) Ms Moodley felt that the conduct of the employee was a defamation of character, she felt discriminated, threatened and unsafe by the employee’s comment,(viii) Ms Moodley went to Ms Monnapula and she was crying and she informed Ms Monnapula that the employee said she should die, (ix) Ms Monnapula asked the employee what happened and the employee admitted to Ms Monnapula that she said Ms Moodley should die, (x) the conversation between the employee and Ms Monnapula and Tevin (the manager) happened at the branch office on the same day of the incident, (xi), Ms Monnapula testified that Ms Moodley was distraught.

[40] The above piece of evidence demonstrates that although Ms Venter and Ms Monnapula were not present when the incident happened between Ms Moodley and the employee, both Ms Moodley and the employee confirmed the incident to both Ms Monnapula and Ms Venter. The confirmation of the incident happened separately and independently from each other. This was crucial evidence which the commissioner simply ignored and concluded that the applicant’s witnesses’ evidence was hearsay.

[41] The commissioner’s focus on the fact that when the incident happened both Ms Venter and Ms Monnapula were not present and therefore their evidence is not reliable, was wrong.

[42] In National Union of Mineworkers and another v Commission for Conciliation, Mediation and Arbitration and others[9]this Court held that:

‘The issue of the importance of credibility findings made by the commissioner being accepted in this court on review was made by Mr Snider, who represented the third respondent. He submitted that it was the commissioner who sat in the arbitration proceedings, looked at the witnesses, listened to them, and assessed their credibility, and on review, this court should not readily interfere with credibility findings made by CCMA Commissioners, and should do so only if the evidence on the record before the court shows that the credibility findings of the commissioner are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually on the record and considered as a whole.’

[43] The credibility finding by the commissioner was out of kilter with the probabilities and all other evidence on record. The credibility finding was a crucial part of the proceedings which influenced the outcome of the arbitration proceedings. Where a commissioner’s credibility finding influences the outcome of the arbitration proceedings and ignored all other material evidence, this Court should not hesitate to interfere with the arbitration award.

[44] The finding by the commissioner that the evidence of the applicant was hearsay evidence materially affected the outcome of the arbitration

proceedings. In terms of section 3(4) of the Law of Evidence Amendment Act[10] (LEAA), hearsay evidence means evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.

[45] The evidence of Ms Venter and Ms Monnapula was hearsay evidence. They were not present when Ms Moodley and the employee had a conversation in the kitchen. The commissioner was aware or ought to have been aware that the applicant’s witnesses did not observe the incident that occurred on 11 March 2021 between the employee and Ms Moodley and consequently, the applicant’s evidence constituted hearsay evidence.

[46] In the process of narrowing down the issues the following exchange happened between the commissioner and the applicant’s representative in the arbitration proceedings:

‘RESPONDENT REPRESENTATIVE: Commissioner. It has just transpired to me Commissioner that the victim was going to be my other witness.

COMMISSIONER: Mhm

RESPONDENT REPRESENTATIVE: Ms Tasha Moodley, she has gotten cold feet.

COMMISSIONER: Mhm.

RESPONDENT REPRESENTATIVE: Her reason is that at last meeting we were here, she was forced to relive the incident by having a face to face with the applicant. So what happened after those words were uttered, she decided to resign from the employment. So now after speaking to her yesterday, she sent me a text now to say it has affected her mentally. She is going through depression and all of that. So I‘ve covered that part by having another witness, Ms Tshego, who is a colleague of Ms Lebyane, who was a colleague and a senior employee, who will then testify as to what had happened after the fact.’

[47] The above exchange shows that the commissioner was aware that Ms Moodley was not going to testify during the arbitration proceedings and the evidence to be tendered by the applicant would be hearsay evidence. The commissioner had a duty to inform the applicant’s representative that in the absence of Ms Moodley testifying, the evidence would constitute hearsay evidence for the applicant’s representative to be aware of. This duty is more erroneous when the representatives are not legal representatives.

[48] The commissioner cannot simply ignore the fact that the evidence is hearsay and then deal with it in the arbitration award without giving the parties an opportunity to deal with hearsay evidence during the arbitration proceedings. Such conduct amounts to denying the applicant a fair trial. The commissioner’s conduct in dealing with hearsay evidence only in the arbitration award is not consonant with fairness and reasonableness.

[49] I will extensively quote the judgment of the LAC, Exxaro Coal (Pty) Ltd and another v Chipana and others[11] to illustrate that the Commissioner’s approach in dealing with hearsay evidence was unreasonable and the award falls outside the band of reasonableness, the LAC stated that:

‘[20] Hearsay evidence is a common form of evidence encountered in disciplinary proceedings. In many cases, it might be the only

evidence available to supplement other direct evidence in making out a case of misconduct or to sustain a defence to a charge of

misconduct. It is therefore not unreasonable to expect commissioners to be familiar with it and to be in a position to identify it readily. That the provisions of the section are not a novelty or mystery to commissioners or arbitrators, is evident from reported

decisions.

[21] The provisions of s 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, do not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence. In the case of hearsay evidence, even though s 3 of the LEEAA (Law of Evidence Amendment Act), by providing a set of rules or principles for the admission or exclusion of hearsay evidence, assumes some legal formality, it is invaluable. While a commissioner is notionally not obliged to apply it because of the discretion bestowed on him or her by s 138 of the LRA, the prudent commissioner does not err by applying it when dealing with hearsay evidence, rather than conceive of an alternative norm that will ensure not only fairness in the process, but also in the outcome of the arbitration. Applying the common – law rules for reception, or exclusion, of hearsay evidence appears not to be the answer, because those rules have already rightly been jettisoned for their ‘rigidity, inflexibility - occasional absurdity. Those epithets in are not consonant with fairness and reasonableness.

…

[24] Those safeguards and precautions, duly adapted, also apply to the application of s 3 of the LEAA in civil proceedings. Because of the similarities between civil proceedings and arbitration proceedings, the overwhelming, adversarial nature of arbitration proceedings under the LRA, and the overarching requirement that such proceedings be fair, those safeguards and precautions, duly adapted, apply equally to arbitration proceedings to ensure fairness and serve as an invaluable guide for commissioners and arbitrators when confronted with hearsay evidence, and, particularly, when applying s 3 of the LEAA. Adapted, they would include the following: (1) section 3(1)(c) of the LEAA is not a license for the wholesale admission of hearsay evidence in the proceedings;(2) in applying the section the commissioner must be careful to ensure that fairness is not compromised; (3) a commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard; (4) a party must as early as possible in the proceedings make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention; (5) the commissioner must explain to the parties the significance of the provisions of s 3 of the LEAA, or of the alternative, fair standard and procedure adopted by the commissioner to consider the admission of the evidence; (6) the commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the closing argument, or in the award. The point at which a ruling on the admissibility of evidence is made is crucial to ensure fairness in a criminal trial. The same ought to be true for an arbitration conducted in an adversarial fashion because fairness to both parties is paramount.

[25] In this matter the timing of the commissioner’s ruling on the admissibility of the hearsay evidence occurred so late that it was undoubtedly unfair to both the employer and the employee.’ [Own emphasis]

[50] As previously stated, the commissioner became aware that the applicant’s evidence would be hearsay evidence during the narrowing down of the issues. He listened to the evidence of Ms Venter and Ms Monnapula. He ought to have alerted the applicant’s representative that the evidence of Ms Venter and Ms Monnapula constituted hearsay evidence. He was therefore passive throughout the proceedings on the issue of hearsay evidence. He decided to deal with hearsay evidence in his arbitration award.

[51] The timing of the commissioner’s decision on hearsay evidence was unfair to the applicant. The commissioner failed to timeously rule on the issue of hearsay evidence. By deciding on hearsay evidence in the arbitration award, the commissioner denied the applicant a fair trial. Consequently, failure to timeously deal with the hearsay evidence renders the arbitration award reviewable.

[52] The commissioner was bound to apply the provisions of section 3(1) of LEAA when hearsay evidence is led. He simply failed to apply the provisions of section 3(1) of LEAA. It is not necessary for either of the parties to inform the commissioner to apply LEAA.

[53] The decision on the admissibility of evidence is a matter of law. A commissioner is bound by law if the evidence is hearsay, to consider the provisions of section 3(1) of the LEAA. The parties do not have to tell him to consider the LEAA. Failure to consider the provisions of section 3(1) of the LEAA constitutes gross irregularity and renders the arbitration award unreasonable.

[54] The commissioner’s finding regarding the reasons for Ms Moodley’s resignation was unreasonable. The evidence of Ms Venter was clear. Ms Moodley resigned because of the conduct of the employee on 11 March 2021. The finding by the commissioner that the employee’s utterances to Ms Moodley could not have been the real reason for her sudden departure simply shows that the Commissioner ignored the evidence of Ms Venter. Ms Venter testified that:

‘MS ANNETTE VENTER: Yes, ja, so Ms Moodley then ended up resigning. She left the company’s employment because she was very much aggrieved by the situation, and her, ja, she had a meltdown and she had to go back to Durban to her family to get them to support her[12].’

[55] The commissioner’s finding that he has not found anything that amounts to conduct that could be said to be insulting, aggressive, repulsive or so repugnant in nature from the employee, ignores the following material evidence:(i) Ms Venter's evidence was that since her employment with the applicant for 30 years and as a regional manager, she never experienced hate speech like in this case, (ii) Ms Venter testified that the applicant will not tolerate a kind of behaviour where toxic environment is created for staff, (iii) where staff feels unsafe, Ms Venter had to protect the working environment and the reputation of the company and to

support good work conduct at the workplace.

[56] The above was crucial evidence which illustrated that the applicant took the conduct of the employee seriously. It was therefore unreasonable for the commissioner to have concluded that he had not found anything that amounts to conduct that could be said to be insulting, aggressive, repulsive or repugnant. It was of no moment that the employee stated that she was joking. Clearly, the fact that the employee said she was joking did not make things better to Ms Moodley. She proceeded to lodge a grievance and she eventually resigned as a result of the conduct of the employee.

[57] The real issue was what she said to Ms Moodley “she should die”. This is not the type of words that any employee should utter at the workplace. These types of words are offensive and have no place in the workplace. The applicant was therefore within its right to take disciplinary action against the employee.

[58] The commissioner’s finding that it cannot be correct and fair that the employee should bear the brunt in that Ms Moodley made a mountain out of a molehill regarding the event of 11 March 2021, was unreasonable and shows that the commissioner failed to properly apply his mind to the material evidence before him. No reasonable decision maker could arrive at this finding given the material evidence placed before him.

[59] The finding ignores crucial evidence which was not challenged by the employee during the arbitration proceedings. The following evidence is apparent from the record: (i) Ms Moodley went to Ms Venter and Ms Monnapula soon after the employee uttered the offensive words; (ii) Ms Moodley was crying when she was with Ms Monnapula and Ms Monnapula observed that Ms Moodley was distraught: (iii) Ms Moodley lodged a grievance against the employee: (iv) the employee admitted that she uttered the words you should die to Ms Moodley. The admission was made to both Ms Venter and Ms Monnapula independently and separately; (v) Ms Venter’s evidence that Ms Moodley resigned because of the conduct of the employee.

[60] The applicant’s disciplinary code and procedure recommend a sanction of dismissal for offensive behaviour.

[61] The arbitration award of the commissioner fell outside the band of reasonableness. The arbitration award issued by the commissioner was not the award which a reasonable decision maker could have arrived at. Consequently, the award must be reviewed and set aside.

[62] In the premises, I make the following order:

Order

1. The arbitration award issued on 7 December 2021 under the case number: GAJB13096-21 is hereby reviewed and set aside.

2. The arbitration is remitted back to the third respondent to be heard by another Commissioner other than the second respondent.

3. There is no order as to costs.

H. Molotsi

Acting Judge of the Labour Court of South Africa

Appearances: For the Applicant: Ms L Pillay Instructed by: Yusuf Nagdee Attorneys For the Respondent: Mr Kabelo Letsholo Instructed by: Letsholo Manasoe Inc. Attorneys

[1] Act 66 of 1995, as amended.

[2] 2007 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) at para 106.

[3] 2013 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25.

[4] 2014 35 ILJ 943 (LAC)[2007] ZALC 66; ; [2014] 1 BLLR 20 (LAC) at para 16.

[5] 2015 36 ILJ 2802 (LAC); [2015] 1 BLLR 50 (LAC) at para 33.

[6] 2011 32 ILJ 723 (LC); [2011] 4 BLLR 404 (LC) at paras 7-8.

[7] Santam BPK v Biddulph 2004 (5) SA 586 (SCA); [2004] 2 All SA 23 9SCA) at para 10.

[8] 1990 (1) SACR 95 (A); [1990] 3 All SA 1087 (A).

[9] (2013) 34 ILJ 945 (LC) at para 31.

[10] Act 45 of 1988.

[11] 2019 40 ILJ 2485 (LAC); [2019] 10 BLLR 991 (LAC) at paras 20 – 21 and 24 – 25.

[12] Record of the arbitration proceedings page 61 line(s) 11 – 15.