Employers who dismiss employees should take remember not to falsely implicate them in the process. This could land employers in hot water with the CCMA, and the Court.

Clover SA (Pty) Ltd and Another v Sintwa

In a recent case, the High Court heard a damages claim arising from defamatory statements made by a witness while giving evidence before the CCMA.

Harrison Sintwa was employed by Clover SA as a team leader, reporting to Frederick Bopp, a production manager. He was responsible for checking machines and products to ensure that they passed the relevant standards. He was required to sign a daily operator report to confirm that the checks were done.

One day, it came to Clover’s attention that Sintwa had falsely signed that he had conducted certain checks when, actually, he had not. Clover charged him with fraudulently co-signing the report. A disciplinary inquiry was convened and Sintwa was dismissed.

The CCMA

Sintwa approached the CCMA with an unfair dismissal dispute. Bopp gave evidence on behalf of Clover at the disciplinary hearing and at the arbitration proceedings before the CCMA. During his evidence, he stated that it came to his attention that Sintwa had co-signed the report sheet and, therefore, committed fraud. The CCMA commissioner found Sintwa’s dismissal to be unfair on the basis that Clover had failed to prove that he was guilty of fraud, finding that his conduct was instead a result of negligence. Mr Sintwa was awarded four months’ salary as compensation.

Implicating an employee can lead to defamation

It didn’t end there, Sintwa also approached the High Court and instituted a damages claim against Clover and Bopp, based on the alleged defamatory statements they presented at the arbitration proceedings before the CCMA. Sintwa claimed R100 000 as damages saying that Bopp and Clover had wrongfully and unlawfully claimed that he had committed fraud.

The court concluded that the statement implicating Sintwa of fraud was irrelevant and unconnected to the arbitration proceedings before the CCMA and that Bopp had acted out of spite, which was supported by the fact that another employee who had co-signed the report with Sintwa had not been charged. It decided that Clover and Bopp had exceeded the bounds of qualified privilege and awarded Sintwa R100 000 in damages.

Conclusion

The take away is that employers should refrain from acting out of spite when dismissing employees. What you say, if untrue or unsupported, could make you accountable for an employee’s dismissal, to the CCMA and the Court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Clover SA (Pty) Limited and Another v Sintwa (CA2011/2015) [2016] ZAECGHC 77; [2016] 12 BLLR 1265 (ECG); (2017) 38 ILJ 350 (ECG) (13 September 2016)