Article 10/2021

Labour Edge

In Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), the employee sought an order for specific performance consequent on a decision that her dismissal had been void ab initio on the basis of the fundamental breach committed by her employer by dispensing with an enquiry before dismissing her.  On what basis did the labour court hold that reinstatement, from the date of dismissal, was the appropriate remedy for the employee (Wereley)?

  1. The employer had correctly pointed out that an order of specific performance is a discretionary remedy (see Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 777A-B).
  2. The primary relief sought by Wereley, consequent upon a finding that her dismissal was void ab initio, was her reinstatement from the date of dismissal and the reconvening of the disciplinary inquiry. One of the considerations, in deciding whether to restore the employment relationship after a declaration that a dismissal is a nullity, is whether, on the evidence available, there had been a breakdown in the trust relationship (see Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC), paragraph [55]).
  3. However, the primary reason Wereley sought an order of specific performance was to ensure that the disciplinary enquiry, which had been convened before an independent chairperson, was concluded before she could be dismissed on account of her alleged misconduct. At the time she was dismissed she had still been on suspension, so her reinstatement did not mean that weaknesses in the trust relationship between her and the employer would immediately be tested by her returning to work. Her only involvement with the employer until the enquiry was concluded and a decision made would be in the course of the inquiry proceedings. For this reason, the labour court did not think that the state of the trust relationship under existing circumstances was a weighty factor affecting its discretion to make an order of specific performance and it did not assume the same importance it might if she had not been on suspension.

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?