Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever-evolving landscape of employment law. I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking:
What if… an employer leads new evidence at arbitration. Is such evidence admissible, and can it be used to prove that the dismissal was fair?
We answer this through the Labour Court judgment in
G4S Cash Solutions (Pty) Ltd v NUMSA obo Mosinyane
G4S employs “custodians” as the final link in the Cash-in-Transit chain. They work alone inside locked ATM cubicles with no cameras, loading notes from sealed bags into ATM canisters. At that point they are in complete and exclusive control of the cash.
Between January and June 2019, shortages on their dedicated routes totalled over R1.3 million. They were charged with gross negligence and dismissed. NUMSA referred an unfair dismissal dispute to the Bargaining Council, where the commissioner found that the dismissals were unfair and ordered reinstatement with full back pay.
G4S took the award on review to the Labour Court. And this is where our question directly arises because at the arbitration, G4S presented a significantly more detailed and technical case than had featured in the original disciplinary hearings: new investigation results, video footage, third-party verification, and audit paperwork that had not all been before the chairperson of the internal disciplinary hearings.
This raises the question…
Was that new evidence permissible?
And, was it admissible?
The Labour Court answered all three questions with an unequivocal yes.
Here is why.
Arbitration before the CCMA or a bargaining council is a hearing de novo — a completely fresh hearing. The employer is not confined to what was placed before the chairperson of a disciplinary hearing and is fully entitled to lead new or stronger evidence, subject to one critical condition: the
reason for dismissal must remain the same. Where the new evidence supports that same reason, it is admissible and the commissioner must consider it.
In this case, that new and expanded evidence comprised six categories:
- Technical investigation results:
A wide-ranging investigation conducted between June and December 2019, producing evidence not fully available at the time of dismissal.
- Video footage:
confirming correct cash amounts were sealed before being handed to the custodians, ruling out any earlier loss in the chain.
- Third-party verification:
Written confirmation from a client that every shortage was genuine, not an accounting error.
- Audit paperwork:
ATM slips, Cash Replenishment Vouchers, auditors’ reports, and run sheets placing the shortages squarely within the exclusive custody of the dismissed custodians.
- ATM technical records:
Confirmation that no technical fault on any of the ATMs could account for the missing funds.
- And lastly, Statistical probability evidence:
The most compelling: shortages dropped by approximately 90% — from over R1.3 million to R134 270 — the moment these nine custodians were removed from duty.
The commissioner sought to exclude this evidence because it had not featured in the internal hearings.
The Labour Court ruled that a “gross and reviewable irregularity” was committed by the commissioner.
In a
de novo hearing, the employer is entitled to prove its case with better evidence. Excluding it on a narrow reading of the charges left the award unreasonable and subject to review. The dismissals were confirmed as both substantively and procedurally fair.
The practical lessons from this judgment are clear:
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1. Arbitration is your opportunity to build a stronger case — you are not limited to what was presented at the internal hearing.
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2. New evidence is admissible — provided the reason for dismissal stays the same. The commissioner must consider it.
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3. Excluding relevant evidence on a narrow reading of charges is a gross and reviewable irregularity.
Lastly; Employees in positions of trust who cannot account for losses under their exclusive control face dismissal as a fair sanction.
That brings us to the end of this week’s discussion.
Thank you for joining us.
I hope you have found our discussion informative.
If you have questions or comments, find us on social media or you can email me on ross@masconsulting.co.za.
Until next time: Goodbye
