Private Note Sparks Court Battle Over Dis­missal

The Labour Court (LC) in Johan­nes­burg recently heard the mat­ter of National Reg­u­lator for Com­puls­ory Spe­cific­a­tions v Cor­nelius and Oth­ers (JR2789/18) [2025] ZALCJHB 191 (10 April 2025).

The employee, employed as Fin­an­cial Man­ager at the NRCS, faced a dis­cip­lin­ary hear­ing in April 2018 after adverse audit find­ings by the Aud­itor Gen­eral, South Africa.

Dur­ing the pro­ceed­ings, she wrote a private note to her legal rep­res­ent­at­ive refer­ring to her Chief Fin­an­cial Officer as a “bitch”.

The note, never inten­ded for her employer, was non­ethe­less seen by her. Rely­ing on this, the NRCS charged the employee with insolence and dis­missed her on 31 July 2018.

The employee referred the mat­ter to the Com­mis­sion for Con­cili­ation, Medi­ation and Arbit­ra­tion (CCMA).

At arbit­ra­tion, both parties agreed not to lead oral evid­ence but to rely on a com­mon bundle of doc­u­ments and writ­ten argu­ments. The Arbit­rator expressed con­cern over this approach but pro­ceeded.

The Arbit­rator ruled that the note was a priv­ileged com­mu­nic­a­tion between the employee and her attor­ney.

Since the priv­ilege had not been waived, the note was inad­miss­ible.

Con­sequently, the Arbit­rator found the dis­missal sub­stant­ively unfair and ordered the employer to pay the employee com­pens­a­tion of R572,064.

The employer sought to review the award.

The LC high­lighted that arbit­ra­tions should not pro­ceed without evid­ence unless a proper stated case is sub­mit­ted.

By rely­ing solely on doc­u­ments, the Arbit­rator lacked suf­fi­cient mater­ial to reach a reas­on­able decision.

The Court also referred to pre­vi­ous cases, includ­ing SA Social Secur­ity Agency v NEHAWU 2015] 36 ILJ 2345 (LC); [2023] ZALCJHB 286 and Hill­side Alu­minium v Math­use 2016) 37 ILJ 2082 (LC); [2016] 10 BLLR 1041 (LC), which cau­tion against resolv­ing dis­putes without evid­ence being prop­erly tested.

The LC found that the Arbit­rator failed to ensure a fair trial of the issues, par­tic­u­larly regard­ing how the note came to be admit­ted and whether priv­ilege had been waived.

The Court set aside the arbit­ra­tion award and remit­ted the dis­pute back to the CCMA to be heard afresh before a dif­fer­ent Com­mis­sioner. No order as to costs was made.

This rul­ing under­scores the import­ance of proper pro­ced­ure in arbit­ra­tion, espe­cially where dis­missal is at stake.

It rein­forces that parties should not bypass oral evid­ence unless a clear and agreed stated case exists, as doing so risks the award being over­turned on review.

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