Among the many responsibilities employers carry is the need to keep accurate records of any warnings issued to employees.
This can be ensured by delivering the warning properly, dating it, and asking the employee to sign to confirm whether they accept or refuse it. These records should be stored by a responsible person in the human resources or management department, who can later produce or attest to them if needed.
The practical implications of an oversight in this regard has recently been availed in the judgement of Swartbooi v CCMA, handed down on 21 January 2026.
Labour Court ruling
This case concerns a review application brought before the Labour Court of South Africa, Gqeberha division, in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA). The applicant sought to review and set aside an arbitration award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA), which had found his dismissal substantively and procedurally fair.
The central issue before the Court was whether the commissioner committed a gross irregularity by relying on inadmissible hearsay evidence – specifically, an alleged final written warning – when concluding that dismissal was an appropriate sanction.
The applicant was employed by Compass Medical Waste Services (Pty) Ltd as a driver from March 2020. On 3 October 2022, he was dismissed for failing to inform his supervisor, prior to the start of his shift, that he would not be reporting for duty. This conduct constituted a breach of a workplace rule.
The applicant referred an unfair dismissal dispute to the CCMA, the first respondent. After conciliation failed, the matter proceeded to arbitration. The Commissioner, Noxolo Mbengo N.O, found that the dismissal was substantively and procedurally fair because the applicant had breached a workplace rule and allegedly been previously issued a final warning for the same breach.
Hearsay evidence is unreliable
The applicant then applied for review to the Labour Court because the Commissioner had unreasonably relied on inadmissible hearsay evidence of such final warning. This is because the third respondent’s only witness that testified had not authored nor had any personal knowledge about whether the final warning was issued to the applicant or not. The applicant denied the alleged final warning having ever been issued or received. Consequently, the Labour Court found the commissioner erred in admitting the unreliable hearsay evidence of such warning which was the determination of appropriateness of the applicant’s dismissal. Such reliance rendered the commissioner’s decision unreasonable.
Record-keeping is vital for employers
This case highlights the importance of procedural compliance and record-keeping by an employer. The critical point is not the factual occurrence that the employee did break company rules, but that dismissal cannot be an “appropriate sanction” where no final warning has been issued and received. It is ultimately the employer who, in terms of section 192(2) of the LRA, bears the burden of proving the warnings and alike are delivered and received. This onus was not successfully discharged in the opinion of the Labour Court.
Arbitration award was set aside
Therefore, the Labour Court determined that the employer failed to prove the existence and validity of the warning, yet it was used to justify dismissal as an appropriate sanction. This was viewed as untenable and as such the arbitration award was reviewed, set aside and the matter was sent back the CCMA to be reheard before a different commissioner. Therefore, employers are urged to be cautious and meticulous with disciplinary record-keeping to mitigate repeating proceedings due to insufficient or non-existent evidence.
Contact a CCMA and Labour Law specialist
As this case illustrates, disciplinary processes and record-keeping can have significant consequences in labour disputes. Each matter must be assessed on its own merits and based on the available evidence. Employers and employees who require guidance should consult a labour law attorney to determine the most appropriate way forward.
For Labour and Employment Law expertise
Wesley Scheepers wesley@abgross.co.za
Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.