This is a question often asked by employers and is a situation that commonly happens when a trade union or the accused employee’s representative demands to be given copies of evidence in the possession of the employer, prior to the disciplinary hearing, with the purpose of preparing for the hearing. Employers often feel intimidated in the circumstances and are left unsure whether or not they are required to share their evidence in advance of a disciplinary inquiry.
It is important to remember that a disciplinary inquiry does not take place in a court of law, and that it is an internal matter. Certain principles that may be applicable to a court of law do not necessarily apply in a disciplinary inquiry. The proper forum for presenting evidence is at the disciplinary inquiry, and not prior to it.
During the disciplinary inquiry, the accused employee (and their representative if applicable), is given the opportunity to listen to the evidence of the complainant as it is presented, as well as listen to witness testimonies while they take place. During this time, the accused employee is able to make notes regarding points that they later want to contest or that they are in dispute with. The stage of cross-examination allows for the accused employee to question the evidence presented.
In ESKOM / NUMSA obo Galada and Others  7 BALR 812 (IMSSA) the issue of presenting evidence prior to a hearing was addressed. The ruling was such that employees are not entitled to be furnished, prior to disciplinary hearings, with documentary evidence which the employer intends to introduce.
For the purpose of a fair disciplinary inquiry, it would be sufficient that the accused employee be given, with notice prior to the inquiry, sufficient detail of the charges and the events they relate to, to enable them to prepare their defence accordingly. The accused employee is further granted the opportunity during the disciplinary inquiry to examine the evidence of the complainant.
In the ESKOM matter above, the trade union contended that the disciplinary inquiries were unfair as none of the dismissed employees had been furnished in advance with documentary evidence which the employer introduced at the hearing.
The award stated that an accused employee does not have the absolute right to gain access to the employer’s evidence in advance of disciplinary hearings. During this particular case, the employees had all been given sufficient notice and explanation of the charges against them, and they were further also provided with a reasonable opportunity to examine the documentary evidence during the disciplinary proceedings – and therefore there was no procedural unfairness in that respect.
A chairperson of a disciplinary inquiry may at their discretion provide the accused employee and their representative a break during the proceedings to examine evidence. During complex legal matters the chairperson may consider granting an adjournment, provided that the request for adjournment is a reasonable one in the circumstances.
It therefore becomes clear that employers are not required to share their evidence with the accused employee ahead of a disciplinary inquiry and that refusal to do so does not make such inquiry procedurally unfair.
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