The Labour Court recently heard the matter of Bhele v Super Squad Trading (Pty) Ltd (C266/19) [2025] ZALCCT 32 (19 May 2025) in which the employee attempted to overturn his dismissal for incitement to commit misconduct.
The employee was employed as a truck driver by the employer. On 19 October 2019, a colleague, Mr N Madola, was assisting another driver, Mr Mouton, on a delivery trip.
During the journey, Mouton discovered that Madola was drinking alcohol, both discreetly in the truck and later openly when they stopped for fuel.
Concerned about safety, Mouton reported the matter to his supervisor, who instructed him to return the truck to the Cape Town distribution centre.
Feeling cornered, Madola made a number of phone calls, one of which was to the employee, a close friend and colleague. Mouton, who overheard parts of the call, recorded the conversation.
Though only Madola’s side was audible, he could be heard saying he was seeking advice, mentioning “Andile”, and later declaring he would pull the truck’s handbrake.
Moments after the call ended, Madola grabbed the handbrake, causing the truck to jack-knife on a bridge, before he fled the vehicle.
Both Madola and the employee faced disciplinary action. Madola was dismissed for pulling the handbrake, while the employee was charged with inciting him to do so.
At his disciplinary hearing, the employee did not deny speaking with Madola but argued their conversation was private.
He also disputed the interpretation of certain isiXhosa words on the recording and insisted he would never advise such reckless behaviour.
The Arbitrator, however, found that the only reasonable inference was that the employee had indeed advised Madola to pull the handbrake.
The Arbitrator stressed that even though the employee was off duty, he still owed his employer a duty of good faith.
Given the seriousness of the misconduct and the potential danger caused, the arbitrator upheld the employee’s dismissal as substantively fair.
Unhappy with the outcome, the employee approached the Labour Court to review the award.
He argued the arbitration was unfair because the interpreter’s isiXhosa level was inadequate, that the evidence relied on was hearsay, and the recording was inaudible and unreliable.
The Labour Court rejected all three grounds. It found the record showed no prejudice from interpretation, as disputes arose only over a single word whose meaning made little difference to the case.
It held Mouton’s testimony was not hearsay, since he was reporting what he directly observed, and the recording of Madola’s words was valid circumstantial evidence.
The audible portions of the recording strongly supported the inference that the employee had incited Madola.
The Labour Court found no material flaws in the arbitration process and that the Arbitrator’s decision was reasonable. Accordingly, it dismissed the employee’s review application, with no order as to costs.
>creditparsans<In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
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