The case of TEMPEST CAR HIRE V LEBYANE JR50/22 [2024] (ZALCJHB) 1 AUGUST 2024 involved the dismissal of the employee following an incident where she made an inappropriate comment towards a colleague, Ms. Tasha Moodley.
The dismissal was initially ruled unfair by the Commission for Conciliation, Mediation, and Arbitration (CCMA), but the employer sought a review under section 145 of the Labour Relations Act (LRA).
The incident occurred on 11 March 2021, when Ms. Moodley came to work feeling unwell. She informed the employee of her condition, to which the employee responded, “you should die.” Although the employee claimed she was joking, Ms. Moodley took offence and later filed a grievance. A grievance hearing was held on 16 April 2021, where the employee admitted to making the comment. The matter was escalated to the Human Resources department, leading to a disciplinary hearing on 24 May 2021, after which the employee was dismissed.
She then referred an unfair dismissal dispute to the CCMA, where the Commissioner found the dismissal substantively unfair and ordered her reinstatement with backpay.
In response, the employer applied for a review of the award, arguing that the Commissioner had failed to consider critical evidence.
The Labour Court reviewed the case and found several flaws in the Commissioner’s approach. The Labour Court found that the Commissioner focused too much on the credibility of witnesses and failed to weigh the probabilities of their versions of events. The Commissioner found one of the employer’s witnesses credible but then disregarded her testimony on key points, which was unreasonable.
The Court also found that the Commissioner failed to consider important evidence, such as the testimony of Ms. Venter, who chaired the grievance hearing, and Ms. Moodley’s resignation following the incident due to the employee’s conduct.
The Commissioner should have informed the employer’s representative that, without Ms. Moodley’s testimony, some evidence would be considered hearsay. His failure to do so disadvantaged the employer.
The Labour Court found that the Commissioner downplayed the seriousness of the employee’s comment, which it found to be inappropriate for the workplace, regardless of the intention behind it.
The Labour Court noted that the employer was justified in taking disciplinary action based on the offensive nature of the comment and that the company’s disciplinary code recommended dismissal for such behaviour.
The Commissioner’s ruling was found to be unreasonable, and the Labour Court set aside the arbitration award, remitting the matter to the CCMA to be heard by a different Commissioner.
No costs were awarded in this case, and the decision underscores the importance of proper procedure in workplace disputes, particularly where misconduct impacts the work environment.
J Goldberg
