Two employees of Pioneer Foods were cleared for the third time after they were initially fired following newspaper articles which implicated them in the looting of bottles containing cold drinks after a Coca-Cola truck had overturned on a road.
The two employees were employed as a driver and a delivery assistant at Pioneer Foods, trading as Essential Foods when they came across a Coca-Cola truck that had lost its load on a motorway.
Passers-by and other people descended on the Coca-Cola truck and helped themselves to the bottles of Coca-Cola on the ground and in the truck.
The two employees were charged with having stopped their vehicle (branded SASKO) at the scene and taking part in the looting, thereby putting their employer’s name into disrepute.
The employer relied on various newspaper and social media reports as “evidence” that the workers looted the cold drinks.
This was after it was reported that a “SASKO Truck” driver was seen running from his truck to help himself to a few drinks that he took back to his truck. SASKO was able to identify the truck and its drivers from the pictures included in the article.
One newspaper quoted an eyewitness as saying: “even a SASKO delivery truck stopped and loaded some stolen stock.” SASKO's trucks are branded, and its evidence was entirely based on these reports.
The two workers claimed that they were driving when they saw the overturned truck and the bottles scattered across the road. According to them, they stopped to help the Coca-Cola driver to pick up the bottles. They claimed that the driver gave them a few bottles containing the beverage to thank them for their help.
Their version was not believed as their employer relied on the newspaper reports and they were fired following a disciplinary hearing.
The matter went to the CCMA, which ruled that their dismissal was substantively unfair and overturned that ruling.
Pioneer Foods then unsuccessfully turned to the labour court to have the CCMA’s ruling overturned. As it also lost that battle, it subsequently turned to the labour appeal court, which also turned down the appeal.
Pioneer Foods forwarded various grounds for the appeal, which included that the evidence of the two workers - that they only tried to help the Coca-Cola driver clear up the bottles - appeared rehearsed as it was identical to each other’s versions.
It was also said that the Coca-Cola truck driver could not have given them drinks from the truck because that company’s policy did not authorise its drivers to hand out Coca-Cola.
But during all three hearings, it was agreed that Pioneer Foods relied on newspaper and Facebook hearsay evidence without having laid the basis for admission of such evidence. The commissioner during the CCMA hearing had alluded to double hearsay as it was not clear whether the reports and the Facebook posts were themselves based on hearsay evidence or whether the authors were present at the scene.
The court further drew an adverse inference because the Coca-Cola driver was not called to testify and no explanation therefore was given by Pioneer Foods.
It was found that there was nothing wrong in taking the word of the two workers as to what had happened that day, in the circumstances where their versions were uncontroverted and there was no direct evidence of the theft.
Pioneer Foods conceded that the newspaper and Facebook evidence it presented is hearsay but contended that it is in the interests of justice to admit such evidence.
It was said on appeal that the employees’ version had to be weighed against that of the appellant (Pioneer Foods) which had been found to be absent. “The employees’ version could therefore be rejected only if it were found to be improbable. The examples of improbabilities in the evidence of the employees and the one instance of a suggestion of collusion in their evidence do not amount to inherent improbabilities,” the appeal court said.
Pretoria News
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