Tag: arbitration

By Phumi Ramalepe for Business Insider SA

Discovery Health has dismissed 10 employees for being part of a private WhatsApp group that apparently aimed to get its Cape Town offices closed.

The 10 young call centre employees apparently asked to be allowed to work from home around the beginning of lockdown. Three of them said they contracted Covid-19.

Their lawyer says their privacy was violated. Discovery says the evidence it obtained through a whistleblower is grounds for dismissal.

Discovery Health fired 10 call centre employees during lockdown for being part of a WhatsApp group that, apparently, sought to “shut down” local Cape Town offices in March, for fear of the coronavirus.

Now the employees want compensation, and their jobs back, but Discovery says it had solid grounds to dismiss them – even though the chat group was private.

According to Discovery, another employee, who had been an active participant of the group, provided information about posts in the group. The company characterises the conversations as bringing it into disrepute, while, it says, the employees failed to raise their concerns internally.

“Ten employees were plotting to sabotage Discovery Health, including plans to involve external third parties to bring the company into disrepute,” said Ryan Noach, the CEO of Discovery Health.

“The motive appeared to be an attempt to achieve the closure of the local Discovery Health offices, in order not to have to work during the period.”

Although the group chat was private, Discovery insists that the employees were “acting subversively”, based on evidence from the whistleblower.

After investigations were conducted, the employees were dismissed in July.

The employees’ pro bono lawyer, Nkosinathi Malgas, said the employees were dismissed unfairly, and only created the WhatsApp group to support each other after Discovery Health refused to let all of them work from home while three of them contracted Covid-19.

“The contents of the WhatsApp group were them talking about their safety in the workplace, and they were supporting one another in terms of the emotional trauma that they were going through,” said Malgas.

Malgas argues that the employees’ right to privacy was also violated, since information that was meant to be private was used against them.

“Constitutional rights of citizens override any social [media] policy. This information was processed from their personal cellphones and these individuals have got a right to privacy.

“Their information is protected in terms of the Protection of Personal Information Act, and therefore anyone who wants to get into your personal information must do so with your consent as well as a court order,” said Malgas.

It would have been a different story had the employees used Discovery’s tools of trade, according to Malgas, rather than their own cellphones and a chat platform unconnected to the company.

Noach, however, insisted no one’s rights were infringed throughout investigations.

“It should also be entirely clear, that all device information utilised in this disciplinary investigation was submitted voluntarily and without coercion, by a whistleblower who made their personal device available.

“There was certainly no infringement of any personal confidential device information whatsoever,” Noach said.

An arbitration that wasn’t
Discovery and the employees had been due to appear before the Commission for Conciliation, Mediation and Arbitration (CCMA) on Monday, but Discovery did not show up, according to Malgas.

A clause in the employees’ contracts stipulates that any dispute related to labour matters, dismissals or termination of employment will be referred to a private arbitration, Malgas said, which means they will have to pay a potion of the cost of such private arbitration.

Discovery tells a different story, however. It had applied for the CCMA matter to be heard virtually, the company said.

“The Commissioner tasked to deal with the matter was unfortunately unavailable and the file was handed to another. It was unfortunate that technical issues were experienced on the side of the CCMA and we could not engage further,” Noach said.

Arbitration is not always final

Either party to an arbitration can take the arbitrator’s conduct on review to the Labour Court if they are able to prove that the arbitrator, in making his/her award, has materially broken a rule thereby committing ‘misconduct’.

Arbitrator ‘misconduct’ can and does occur in many different forms including, amongst others, bias, interrogation of witnesses, failure to keep records, ignoring of evidence, refusal to allow a party the right to question witnesses or bring evidence, failure to apply his/her mind, misconstruing of evidence, overstepping his/her authority and failure to consider statutory provisions.

An arbitrator cannot make a fair decision if he/she fails to take into account all of the material evidence placed before him/her. In the case of Crown Chickens (Pty) Ltd vs Kapp & others (2002, 6 BLLR 493 LAC) the arbitrator found that the employee had not called a colleague a “kaffer”. However, the Labour Appeal Court found that the arbitrator had, without good reason, rejected the evidence of two witnesses whose evidence indicated that the employee had called his colleague a “kaffer”. The Court therefore overturned the decision of the arbitrator, found the employee’s dismissal to have been fair and ordered the employee to pay the employer’s legal costs.

In the case of Prince vs CCMA and others (2005, 2 BLLR 159) the employee was fired for stealing money collected from the car park pay station. The CCMA arbitrator found that the employee had been involved in the theft and upheld the dismissal. The Labour Court found that the employer’s evidence had been sketchy and contradictory and that the CCMA commissioner’s award finding had not been based on the facts. The employer was required to reinstate the employee with 44 months’ back pay plus interest. The employer was also ordered to pay the employee’s legal costs.

In an unreported case (Number JR 1606/04) the employee was reprimanded by a manager for failing to phone in while absent from work. The employee left his employment, went to the CCMA and claimed that he had been dismissed. At the CCMA the employer denied that the employee had been dismissed and brought substantial evidence to show that the employee had been instructed to return to work.

During the arbitration hearing the commissioner frequently cross examined the employer’s witnesses and made remarks deriding the evidence of those witnesses. The arbitration award, which was in favour of the employee, failed to take into account the evidence brought by the employer.

The employer took the arbitrator on review to the Labour Court claiming that the award failed to take the facts into account and that the arbitrator was biased. The Court found in favour of the employer and found the dismissal to be both procedurally and substantively fair.

Parties therefore need not give up if they truly believe that, on the proven facts, they were short changed due to irregular conduct on the arbitrator’s behalf.

However, even if the aggrieved party has evidence of arbitrator ‘misconduct’ it is difficult to persuade a court judge that this evidence amounts to solid proof meriting the overturning of the award. In the unreported case described immediately above the employer used proper labour law expertise in order to prove its case. Failure to use such expertise would most likely to have resulted in the employer losing the case.

By Dr lvan lsraelstam, chief executive of Labour Law Management Consulting.

Witnesses are key in arbitration

Legal procedure makes it immensely difficult for a party at arbitration to win its case without witnesses.

For example, should an employer send, no witnesses to a CCMA arbitration the employer’s representative will find it extremely difficult to win the case because the testimony of witnesses normally forms the crucial core of the procedure at any arbitration hearing.

The procedural guidelines laid down require the arbitrator to start off by explaining the arbitration process and rules.

This entails explaining:

• that the employer is normally required to present its case first. This will be done via witnesses, documents and other evidence

• the right to cross examine that witness

• the arbitrator has the right to ask the witness questions for clarity and the employer is allowed to re-examine the witness, but only regarding the issues raised during cross examination

• once all the employer’s witnesses have been heard the employee presents his/her case according to the abovelisted steps.

Thereafter the arbitrator must:

• Hear closing statements

• Assess the evidence and make the award.

The evidence that the arbitrator assesses for purposes of deciding in favour of the employer or employee falls into three broad categories. Viz:

• Documents

• Sundry items such as video tapes, stolen goods, photos and other items relevant to the case at hand

• Witness testimony

While all three types of evidence are very important the testimony of witnesses is the most crucial of all. This is because it is difficult (and often impossible) to bring documentary or other evidence without using witnesses as a channel. For example, should the employer’s representative need to bring a letter or a video tape as evidence against the employee, the representative will need to validate the letter or video by bringing, as a witness, the author of the letter or the person who filmed the video. Thus, witnesses are normally the conduit for all other evidence.

In the case of NUMSA obo Buthelezi vs Falcon & another (2003, 10 BALR 1110) the employee was dismissed for attempting to steal paint as reported via a sworn statement from the security guard who had caught him. However, as the security guard did not give evidence at the arbitration hearing the arbitrator found the dismissal to be unfair and ordered the employer to reinstate the employee with full back pay.

Not only are witnesses the most crucial source of evidence they are also the most difficult source of evidence to utilise. There are many reasons for this:

• Unless properly managed witnesses can disappear or fail to turn up at the arbitration hearing

• Unless properly prepared witnesses forget important details

• Witnesses can be bribed or otherwise persuaded to lie

• Unless expertly handled witnesses may get nervous during the arbitration hearing. They may therefore get flustered and so make mistakes.

Due to the fact that witnesses are the most crucial means of winning a case at arbitration and, at the same time, the most difficult evidentiary element to control any party at arbitration should use the services of a labour law expert to:

• Identify well in advance all the witnesses that will be needed

• Prepare these witnesses to ensure that they will truthfully give the evidence relevant to the case of the party who calls them

• Work out which witnesses will be used to validate which documents and other evidence.

By Ivan Israelstam, CEO of Labour Law Management Consulting

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