Labour Court rules in favour of driver dismissed for not reporting day off, sends case back to CCMA
The Labour Court in Gqeberha has overturned a Commission for Conciliation, Mediation and Arbitration (CCMA) award that upheld the dismissal of a medical waste driver, ruling that the commissioner relied on inadmissible evidence and committed a gross irregularity in finding the dismissal substantively fair.
In a recent ruling, Judge Zolashe Mzikazi Lallie set aside the arbitration award involving Patrick Thembalethu Swartbooi and his former employer, Compass Medical Waste Services (Pty) Ltd. The matter has been sent back to the CCMA for a fresh hearing before a different commissioner.
Swartbooi was employed as a medical waste driver in March 2020 and dismissed in October 2022 after failing to inform his supervisor before the start of his shift that he would not be reporting for duty. He referred an unfair dismissal dispute to the CCMA, where a commissioner ruled in July 2023 that his dismissal was both procedurally and substantively fair.
When reaching the conclusion, the CCMA relied on the employee’s evidence that Swartbooi had a final written warning on his file for the same offence.
Disillusioned, Swartbooi approached the Labour Court to review and set aside the award, arguing that the commissioner committed serious irregularities during the arbitration. Central to his case was the commissioner’s acceptance of evidence that he was on a final written warning for the same offence at the time of his dismissal — a claim he denied.
The court found that while Swartbooi had admitted breaching the workplace rule, the commissioner erred in concluding that dismissal was an appropriate sanction. Judge Lallie held that the employer failed to present admissible evidence proving that a final written warning had been issued and communicated to the employee.
The employer’s sole witness relied on a document found in Swartbooi’s personnel file but had no personal knowledge of its issuance. The court ruled that this amounted to hearsay evidence and should not have been admitted without justification. The commissioner’s reliance on this evidence directly influenced the finding that dismissal was fair, rendering the outcome unreasonable.
The court rejected other complaints raised by Swartbooi, including claims that the arbitration was unfair because the employer’s witness was not properly sworn in and because opening statements were not allowed. Judge Lallie confirmed that commissioners have wide discretion under the Labour Relations Act to conduct arbitrations with minimal legal formalities, provided proceedings remain fair.
However, the court concluded that the improper admission of hearsay evidence constituted a gross irregularity that undermined the fairness of the arbitration.
As a result, the arbitration award was reviewed and set aside, and the dispute will be reheard afresh at the CCMA. No costs order was made, with the court noting that the employer had not acted unreasonably in defending the award.
sinenhlanhla.masilela@iol.co.za
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