Driver Wins Labour Court Appeal as Hearsay Evidence Overturns Dismissal Ruling

A medical waste driver dismissed for failing to report his absence has been granted a second chance after the Labour Court in Gqeberha threw out a CCMA ruling that upheld his firing. The court found the original commissioner committed a gross irregularity by relying on inadmissible hearsay evidence about a prior final written warning, a decision that unfairly tipped the scales toward dismissal.

The case involves Patrick Thembalethu Swartbooi, who was employed by Compass Medical Waste Services and dismissed in October 2022. He took his unfair dismissal case to the CCMA, where a commissioner in July 2023 ruled the termination was both procedurally and substantively fair. That decision hinged on the acceptance of evidence that Swartbooi had a final written warning for the same offence on his recorda claim he contested.

The Hearsay Hurdle: A Warning That Couldn’t Be Proven

Judge Zolashe Mzikazi Lallie, reviewing the case, identified a critical flaw. While Swartbooi admitted to breaching the rule by not calling in, the employer’s sole witness could not personally confirm the alleged final warning had ever been issued or communicated to the employee. The witness relied solely on a document in Swartbooi’s personnel file, which the court deemed inadmissible hearsay.

“The commissioner’s reliance on this evidence directly influenced the finding that dismissal was fair, rendering the outcome unreasonable,” the judgment stated. This improper admission of evidence constituted a gross irregularity that undermined the entire arbitration’s fairness.

A New Hearing, but Not a Blank Slate

The court dismissed Swartbooi’s other complaintssuch as the witness not being sworn innoting commissioners have broad discretion to conduct proceedings with minimal formality. However, the hearsay error was fatal to the award.

As a result, Judge Lallie set aside the CCMA ruling and ordered the dispute to be reheard afresh before a different commissioner. No costs were awarded, as the employer was not found to have acted unreasonably in defending the original outcome.

The ruling underscores a fundamental principle in labour disputes: the burden of proof rests squarely on the employer, and evidence must be credible and properly presented. For Swartbooi, it means a return to the CCMA with the tainted evidence stripped away, offering a renewed opportunity to argue whether dismissal was truly a fair sanction for his absence.