by Tony Healy | Oct 17, 2019 | Jobs
“JOBS for cash” is not a new phenomenon. We observe this with clients on a quite frequent basis.
It’s quite simple. Someone within the company, with influence over recruitment and selection decisions, accepts cash to ensure a job applicant’s employment. It can occur with human resources staff, and line management alike.
One such case this issue was that of Mphela Zebulon Matlou v Exxaro [CCMA arbitration: case number LP5338-14]. In this case, “the boyfriend to her younger sister had paid another man the money as he promised that he would get the jobs for them. They had recorded their conversation with him”. The arbitration awarded noted that “The (employee) told him that he knows one Wiseman who can arrange a job for him. But this Wiseman will need R5000-00. In the presence of his parents he gave the (employee) R5000.00 and his CV. His girlfriend’s sister was also looking for a job so he gave the (employee) another R5000.00 and her CV. In total, he gave the (employee) R10000-00”.
This all too familiar scenario continued when, as time went by and the (employee) started avoiding his calls. “He sent the (employee) an sms. He even confronted the (employee) several times to repay the money even if it was in instalments”. Yet a further witness testified that “She went to Lephalale to give Piet R5000-00 to give it to the (employee). Piet provided her with the contact details of the (employee). Within a week she contacted the (employee) who indeed confirmed receipt of the money and the CV. They contacted each other and she would even ask the (employee) how far he was. The (employee) advised her to be patient.
After Easter week-end they met in Polokwane. The applicant promised her that after July things would be fine. After July, she started calling the (employee) who was ignoring her calls. The (employee) knew her two numbers and when he called on a different number she would respond. She told him that July had passed and that she then demanded her money.
She met the (employee) at the Steers in Lephalale. She was in the company of her boyfriend. She bugged their conversation”. She further contacted the employee around November and December he promised to repay her in February. Later the employee reneged on the agreement saying they did not sign and there was nothing she could do to him”. Needless to say, no jobs were forthcoming. The dismissal of the employee for “selling jobs” was upheld by the CCMA.
In the further case of ITU obo Monica Zulu v Tiger Brands Albany Bakery (Pty) Ltd [CCMA arbitration: Case number GAJB26681-14], the employee was dismissed for “soliciting payment in return for a permanent job”. In this case, the evidence was that the dismissed employee informed job applicants that they were required to pay a R50,00 “joining fee” and an additional R500,00 payment “was to make sure he secured a permanent position” with the employer.
In Paul Maboya v Setloblox (Pty) Ltd [CCMA arbitration: Case number 10305-17], the dismissed employee had informed two job applicants that “they had to pay him R2 000.00 each in order for them to secure employment”. Two job applicants “borrowed it (the money) from their relatives as they were desperate for employment”. The arbitration award continued that “The 2 witnesses became anxious when the applicant stopped communicating with them and they were still unemployed in January. They lodged a complaint with the respondent about their apparent swindling at the hand of the applicant”.
The Commissioner rightly held that “the applicant took advantage of their anxiety to earn income by extorting money that they did not have to benefit himself. The applicant knew that his conduct was wrong because he covertly arranged to meet with the 2 witnesses in places payment from the destitute and vulnerable job seekers, where the exchange of monies would not be obvious to his employers …. (the employee received) payment from the destitute and vulnerable job seekers”. This is a somewhat difficult, clandestine, activity which is difficult to uncover in the absence of whistle blowers. Vigilance in recruitment and selection goes some way in deterring and identifying this uncouth practice.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. For column back-copies, visit: Tony Healy & Associates.
by Tony Healy | Oct 11, 2019 | Jobs
HEARSAY evidence is evidence tendered by an individual who relays evidence that he/she did not personally witness with his/her own eyes or senses, but heard from someone else.
Hearsay evidence is considered to be unreliable, problematic because the source of the evidence is not available for cross-examination and often faulty as the witness may have mistakenly made an error in the interpretation of what was communicated by the source of the information. It is typically weak evidence, which needs to be handled with caution and includes statements of third parties and documents.
The Law of Evidence Amendment Act (45 of 1988) defines hearsay evidence as: “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.” It follows that hearsay evidence is generally inadmissible, but not always.
Schwikkard & Van de Merwe, in Principles of Evidence, highlight that the fears associated with admission of hearsay, include “distrust of oral evidence reflected in the requirement that evidence is also problematic because the court is unable to observe the demeanour of the person who made the original statement. Another reason given for the exclusion of hearsay evidence is that it is secondary evidence and consequently, not the best evidence.”
The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (Labour Appeal Court: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence in the context of disciplinary and arbitration hearings. Section 3 of the Act says the judgment “essentially means that if there is no agreement to receive hearsay evidence, it is to be excluded unless the interests of justice requires its admission”.
Importantly, the judgment notes that: “Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all… This Court held ‘Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion-orientated and rigid rule-and-exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted’. This section still retains the ‘caution’ concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not.”
So, what does it mean in disciplinary and arbitration hearings? For starters, it confirms that hearsay evidence is indeed admissible “if the interests of justice require it to be admitted”. Put differently, it is wholly incorrect to submit that hearsay evidence is always inadmissible. However, caution must always be applied.
The judgment also tells us that: “The provisions of section 138 of the Labour Relations Act 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 does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence or for that matter any other kind of evidence.”
The judgment went on to quote S v Ndhlovu and Other which “referred to safeguards to ensure respect for an accused’s fundamental right to a fair trial”. Cameron JA pointed out that safeguards, including the following, were important: “First, a presiding judicial officer is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. “More specifically under the Act, it is the duty of a trial judge to keep inadmissible evidence out, (and) not to listen passively as the record is turned into a papery sump of ‘evidence.’
“Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained. Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial nor in argument still less in the court’s judgment or on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility so that the accused can appreciate the full evidentiary ambit he or she faces.”
In the final analysis, professional advice should be sought when evaluating whether hearsay evidence is or isn’t admissible in a given set of circumstances.
Tony Healy is a director at labour law consultancy Tony Healy & Associates. Visit: Tony Healy & Associates, email: [email protected] or call 086 111 5375.
by Tony Healy | Oct 7, 2019 | General
Workers old enough to remember the labour relations environment in the 1980s will remember the emergence of recognition agreements. The then Labour Relations Act had no codification of trade union rights or what we today refer to as organisational rights.
Back then, emerging trade unions had to try to strong-arm employers into recognising them, and in so doing, grant the trade union stop order, access and shop steward rights.
And if union representation grew to majority representation, collective bargaining rights would be included in the recognition agreement.
It is not far off the mark to say that before the 1995 Act, trade unions entered into recognition agreements with employers on the back of their significant membership numbers and negotiating prowess.
The notion of employers recognising trade unions, at least for the purposes of trade union rights, fell away. The threshold of “sufficient representation” was born, and any trade union that now acquires sufficient representation in a workplace is automatically entitled to the trade union organisational rights associated with sufficient representation, namely access to the employer’s workplace (section 12 of the Labour Relations Act) and the obligation of employers to deduct and pay over union membership subscriptions monthly (section 13 of the Act).
Trade unions were no longer required to be recognised by employers for these rights, as they were an automatic consequence of the union having membership that met or exceeded the sufficient representation threshold.
However, the sufficient representation threshold was not defined, at least not in percentage terms. What initially became apparent, for various reasons, was that sufficient representation was in the region of 30% of all eligible union members, with eligible union members being all employees excluding senior management.
Since 1995, statutory amendments to the Act, pre-empted by evolving case law, have in certain circumstances lowered the sufficient representation to less than 30%.
The second union membership threshold dealt with in the Act for purposes relating to trade union organisational rights is majority union representation, often described to be 50% plus one member within the ranks of eligible union members.
Once a trade union acquires majority representation, two further trade union organisational rights kick in, namely the right to appoint shop stewards (referred to as trade union representatives in the Act) in terms of sections 14 and 15 of the Act, and the right to information disclosure, in terms of section 16 of the Act.
In practice, there are occasionally squabbles between employers and trade unions over the verification of actual trade union membership.
So, how does collective bargaining fit into this scenario? It could be argued that there is still some degree of recognition of trade unions when it comes to collective (wage) bargaining. It has become, wisely, a norm for employers to agree to enter into collective bargaining arrangements with unions that reach majority representation, although there is no duty to bargaining in our law per se.
Over time, collective recognition agreements are being phased out as trade unions no longer require employers to recognise them for trade union, organisational rights, as these rights have been codified in the Act, once sufficient and/or majority representation has been achieved and verified. Nowadays, the trend is to conclude separate organisational rights and collective bargaining agreements.
This makes sense on many levels. To begin with, organisational rights and collective bargaining rights are fundamentally different and unrelated. There is no logical reason why they should stand together in the same collective agreement.
Secondly, in the separate agreements scenario, an organisational rights agreement can persist in the event that a trade union loses majority representation. If both organisational and collective bargaining rights were both contained in a single collective agreement, a new collective agreement would need to be concluded, although the union may nonetheless retain a level of sufficient representation.
Our anecdotal observations of organisational rights and collective bargaining agreements is that they are not reviewed regularly to reflect renewed best practice over time. Indeed, this is perhaps even more pertinent to disciplinary procedures and codes.
Tony Healy is a director at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za, email [email protected] or call 0861 115 375.
by Tony Healy | Sep 27, 2019 | Employers
One of our multinational clients recently lamented the fact that they experience the highest number of theft-related and dishonesty cases in South Africa than anywhere else in the world.
The unfortunate reality is that our consultancy deals with numerous theft and dishonesty-related disciplinary and arbitration hearings on an ongoing basis.
One of the questions that frequently arises is, does the monetary value of the items or money stolen influence the choice of sanction and, importantly, if the item is of minimal monetary value, does it mitigate against dismissing the culprit?
To begin with, it is worth remembering what the Constitutional Court (Concourt) had to say on sanction selection in Sidumo & Cosatu v Rustenburg Platinum Mines Ltd & 2 others (CCT85/06).
This judgment, among other things, said that: “In deciding whether a dismissal is fair, a commissioner need not be persuaded that dismissal is the only fair sanction – it is sufficient that the employer establishes that it is a fair sanction.”
In this vein, the Concourt judgment continued that the: “Labour Appeal Court in Nampak Corrugated Wadeville v Khoza (held that) the determination of an appropriate sanction is a matter that is largely within the discretion of the employer. However, this discretion must be exercised fairly.
A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable.”
The judgment said: “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached.
The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
Therefore, it follows that the monetary value of goods or funds stolen must be considered as a mitigating factor when contemplating sanctions in dishonesty cases, but does it necessarily mean that they will save an employee from dismissal even if the monetary value is low?
The short answer is, not necessarily. But it may on occasion.
For example, the dismissal of a retailer store employee who pleads guilty to stealing a few sprays of deodorant from a can of deodorant on the store shelf would be substantively unfair, on grounds that the sanction is too harsh, if there were compelling mitigating factors such as long service and a clean disciplinary record.
The Labour Appeal Court judgment in Shoprite Checkers v CCMA & 2 others (LAC: JA08/2004) provides important insights into dismissal for the theft of small items.
This judgment quoted the Labour Court in Standard Bank SA Limited v Commission for Conciliation, Mediation and Arbitration and others (1998) 6 BLLR 622 at paragrapha 38-41, where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”
This judgment continued that the Standard Bank judgment “was followed by Mlambo J (as he then was) in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at paragraphs 16-17 where the learned judge found that in relation to the consumption of one 250ml bottle of orange juice ‘theft is theft and does not become less because of the size of the article stolen or misappropriated’”.
The question of whether dismissal for theft, regardless of the value of the stolen items in the context of prevailing high stock losses was addressed by the Labour Appeal Court in Leonard Dingler (Pty) Ltd v Ngwenya (1999:20 ILJ).
The Court said: “Was dismissal of the respondent an unfair sanction? I am persuaded that this question fails to be answered in the negative. It is true that the respondent had a long record of service (seven years 10 months) with no previous record of a disciplinary offence. The Witness testified that the appellant experienced theft by its employees on a large scale. It follows that a measure of deterrence is called for.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za.
Call 0861 111 5375 or email [email protected].
by Tony Healy | Sep 6, 2019 | Employers
Employers are inclined to sigh with relief when an employee apparently confesses when they are being investigated in relation to
suspected misconduct.
It is easy to understand why. At face value, an employee who confesses to misconduct is likely to plead guilty in a subsequent
disciplinary hearing and not dispute any potential dismissal.
Yet, the script does not necessarily play out this way, with apparent confessions being withdrawn or even denied at disciplinary hearing
or even arbitration stage.
South African case law tells us that for a confession to be relied upon, it is important to establish and be able to prove that the
confession was made voluntarily.
For example, in OK Bazaars (A division of Shoprite Checkers) vs CCMA & Others (2000) 21 ILJ 1188 (Labour Court), it was held that:
“It follows that if a confession is made voluntarily and shows the infraction of a disciplinary code or a breach of contract, it is, in the absence of some other satisfactory explanation by the employee concerned, sufficient to prove his or her misconduct.”
In yet another case, Western Levels Deep West Mine/NUM obo Xhanywa (1999) 8 BALR 1003 (IMSSA), the arbitrator held that when
an employer seeks to rely on an alleged confession, it must prove that it was actually made and made voluntarily.
As there was no evidence to support the evidence of a single witness that the grievant had indeed confessed voluntarily, the employer
failed to discharge the onus of proving that the dismissal was fair.
In Nweba v Coca Cola Fortune (2004) 10 BALR 1249 (CCMA) Brand C emphasised, as noted in SASBO obo Daniel Maphanga v First
National Bank (GATW5295-13), that “the proper test for the admissibility of confessions is to establish whether on a balance of probabilities the confession was made freely and voluntarily, not whether it would survive a challenge in a criminal court”.
However, in the Commission for Conciliation, Mediation and Arbitration (CCMA) hearing in FAWO obo Sotyato v JH Group Retail Trust
[EC19119 – 2001], the commissioner held that although the employer had submitted that the dismissed employee had signed a statement confessing to having stolen beer, “The employee denies this and the company argues that the employee admitted committing the offence, and relies on a ‘confession’ allegedly made by the employee to prove that point. The employee denies making the confession and argues that the signature that appears on that document is forged and not his.”
“Other documents containing the employee’s signature were presented by the company to prove that the signature that appears on the
confession was indeed the employee’s signature.”
“I’m not a hand-writing expert nor did the company present such an expert witness. Under the circumstances, I must look at other
factors to determine whether the company has established the authenticity of the alleged confession. The manager who allegedly caught
the employee stealing is the person who took the ‘confession’. The confession is allegedly signed by the employee and no other person
witnessed the making or signing of this confession.
In legal terms, a confession is a sworn statement signed by the person making it, in which he admits to committing an offence and is attested to before a commissioner of oaths, normally a magistrate. The said document has to be made voluntarily and without any coercion.
“In this case the ‘confession’ was allegedly made to the accuser, it is not a sworn statement and was not witnessed by any other person
other that the accuser. The company bears the onus to prove, on a balance of probabilities, the commission of the offence for which the
employee was dismissed.”
“In this matter, I’m confronted by two mutually exclusive versions of the two parties. Given these versions, I have to determine ‘what
probably happened’ on the day in question and which of the two versions is probably true.
On the basis of the evidence before me, I am unable to make that determination and the company, which bears the onus of proof, has
failed to persuade me that its version is the probable one.”
This suggests that employers should have an employee sign confession in the form of an affidavit to ensure that the authenticity and
legitimacy of the confession is beyond reproach at the CCMA, a Bargaining Council or the Labour Court.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
Visit www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]
