Hogan Lovells Publications | Employment Alert | February 2017

Can a dismissed employee be defamed in CCMA arbitration proceedings?

Does an employee who alleges that he was defamed by statements made during his disciplinary/CCMA process have a legal claim for defamation? 

Towards the latter part of 2016, the Eastern Cape High Court in Clover SA (Pty) Limited & Another v Sintwa [2016] 12 BLLR (HC) was called upon to determine whether statements made during an arbitration in which a witness had wrongfully and unlawfully alleged that Sintwa committed fraud amounted to defamation.

In brief the facts were the following:

• Sintwa was employed by Clover as a team leader tasked inter alia with conducting checks on machines and products in order to ensure that the products passed the QA standards. To that end, it was incumbent on Sintwa to certify on the relevant form that the necessary checks had been completed. 
• In December 2009, Sintwa was charged with misconduct and subsequently dismissed, the allegations being that he "acted fraudulently by co-signing the DOR (daily operator report) claiming that a certain test which is not performed on the machine had indeed been performed on the TBA 8 machine". (sic) There was no dispute that Sintwa signed the relevant form.
• Dissatisfied with his dismissal, like many before (and many to follow) Sintwa referred a dismissal dispute to the CCMA. 
• A production manager testified at arbitration that it had come to his attention that Sintwa co-singed the DOR sheet.The manager alleged that Sintwa committed fraud by his gross negligence. 
• The CCMA Commissioner found that Clover had not substantiated the claim of fraud but instead concluded that Sintwa had indeed been guilty of negligence. Sintwa's dismissal was on this basis found to have been substantively unfair.
• Subsequent to the issue of the CCMA award, Sintwa approached the High Court and sued Clover for defamation contending that the production manager during the arbitration wrongfully and unlawfully alleged that he committed fraud when this was not the case. 
• Sintwa sued for damages of ZAR100 000. 

These facts are not novel. But, does Sintwa have a valid claim for defamation? Clover was obviously implicated by virtue of the principle of vicarious liability. The High Court found that Clover was indeed liable to pay Sintwa ZAR100 000 in damages on the basis that the statement implicating Sintwa as having committed fraud had been irrelevant and unconnected to the arbitration proceedings. Clover was found to have exceeded the bounds of qualified privilege another legal principle which establishes a defence to a claim of this nature. The judgment of the High Court was of surprise to us so we followed the decision of the appeal court (cited above) with great interest. 

We were pleased to note that the appeal was successful and the appeal court dismissed the damages claim. The judgment on appeal is technical. In short, the appeal court confirmed that, where there is no malice and that the statements are relevant to the matter at hand and supported by reasonable grounds, a defence is established against a claim of defamation. The appeal court found that the reason Sintwa was dismissed was based on the allegations of fraudulent misconduct. Accordingly, the version of the production manager must indeed have been self-evidently relevant. Without such version the CCMA arbitrator would have been oblivious to the reason for Sintwa's dismissal and would thus not been able to assess the validity of such reason for dismissal. 

The short point is that only relevant issues that are connected to the facts must be placed before the arbitrator. Witnesses who are on a frolic of their own and show malice may open themselves and their employers to a claim for defamation.

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