Labour Court sharpens rules on hearsay evidence in GBV dismissals

A municipal employee was dismissed for kidnapping and rape of a member of the public. A bargaining council commissioner found the dismissal substantively unfair, largely rejecting admitted hearsay evidence (including a police statement and investigating officer testimony) because the complainant was unavailable for cross-examination, and accepting the employee's version despite multiple contradictory accounts across the disciplinary and arbitration proceedings.

The court held: The court set aside the award as substantively unreasonable. The commissioner committed material errors: (1) wholesale rejecting admitted hearsay evidence simply because the complainant was absent, rather than weighing it alongside all other evidence; (2) failing to apply the Stellenbosch Farmers' Winery credibility assessment framework to the employee's contradictory versions; and (3) criticising the employer for not calling witnesses whose contact details were unobtainable. The court substituted a finding that the dismissal was substantively fair, while upholding the unchallenged procedural unfairness finding and awarding one month's nominal compensation.

Legal impact: Develops the law on how arbitration commissioners must handle admitted hearsay evidence in serious misconduct dismissals, particularly GBV cases. Commissioners are now on clear notice that they cannot reject such evidence solely on the basis that the complainant was unavailable for cross-examination — they must weigh it against all other evidence and apply the established credibility framework. The judgment also reinforces that an employee's internally contradictory versions across disciplinary and arbitration proceedings are fatal to credibility. The court's emphasis on South Africa's GBV crisis as a contextual factor signals a robust approach to evidentiary assessment in such cases.