During a disciplinary inquiry, a chairperson must hear all relevant evidence presented. The chairperson does not normally have the right to ignore or to refuse to hear any evidence related to the case. There is however one exception to this rule, being that the evidence admitted during a disciplinary inquiry must be legally permissible. This means that, even if the evidence offered by one of the parties is clearly relevant, the chairperson of the disciplinary hearing should still reject it if the evidence concerned is inadmissible according to legal principles.
Two types of evidence that may be ruled inadmissible are opinion evidence and hearsay evidence.
Hearsay evidence occurs, for example, where the person placing the evidence before the presiding officer is not the person who witnessed the incident. For instance, the complainant may call the bookkeeper as a witness who might testify that the accused employee had been seen by the accountant making false entries in the books of account. The bookkeeper’s evidence is hearsay because they did not see the false entries being made. The evidence that the accountant saw the alleged incident is hearsay, indirect or second hand. The evidence that the accused was seen making the false entries would only be admissible if the accountant testified to this fact at the hearing and therefore the accountant would need to be called as a witness during the inquiry.
Another example of hearsay evidence at a disciplinary inquiry is where the complainant hands the chairperson a written statement but the person that wrote the statement is not brought as a witness in the disciplinary inquiry.
The reasons that hearsay evidence is not considered permissible is because such evidence increases the possibility that the evidence has been intentionally fabricated because the originator is not there to confirm the evidence.
It further also increases the likelihood that there may be errors in the hearsay evidence placed before the hearing and that the person presenting it might have misunderstood the originator. In this sense hearsay evidence is similar to a rumour in that the more people the story is told to, the more it can be altered along the communication lines. This renders the evidence unreliable.
Another issue with hearsay evidence is that the opposition party who may wish to dispute the evidence is not given the opportunity to cross examine the originator of the evidence.
There are certain exceptional circumstances where hearsay evidence might be accepted to a limited extent. However, where a chairperson illegally admits hearsay evidence in dismissing an employee this is most likely to result in the CCMA or bargaining council arbitrator ruling the dismissal unfair.
In the case of CEPPWAWU obo Tshukudu vs Solid Doors (Pty) Ltd (2002, 11 BALR 1114) the employee was dismissed for allegedly making false accusations against his managing director. The alleged fact that the accusations against the MD were false was based on hearsay evidence. The arbitrator therefore found the dismissal to be unfair and ordered the employer to reinstate the employee with full retrospective effect.
In NUMSA obo Mnisi vs First National Battery (2007, 10 BALR 907) several employees were dismissed for allegedly stealing batteries. The presiding officer admitted into evidence a tape recording of an alleged statement by an employee implicating the employees charged with the theft. The arbitrator found that the admission of this evidence to be hearsay because the maker of the alleged statement did not testify. The arbitrator therefore ordered the employer to reinstate all the dismissed employees with retrospective effect.
When a chairperson is faced with hearsay evidence, they must consider the following:
• whether the evidence should be admitted at all
• what the reason that hearsay evidence is being brought instead of first hand evidence
• whether it may be that it is impossible for the originator of the evidence to testify because they have subsequently passed away or aren’t available to testify for whatever reason
• whether it should be admitted but be given less weight than it might otherwise be given
• admitting the hearsay evidence will result in legal prejudice to the opposing party. That is, will the admission of this evidence substantially disadvantage the case of the opposing party?
• the inherent value of the evidence outweighs the potential disadvantages of admitting hearsay evidence.
Having to make these crucial yet highly complex decisions require a solid understanding of the laws of evidence. It also requires substantial skill in weighing up the pros and cons and making a decision that is fair and pragmatic for the employer but does not infringe the labour laws protecting the employee.
It is therefore crucial that all employers make use of the services of labour law experts to assist them with presiding over their disciplinary inquires. Contact Invictus Group on 0861 737 263 for us to conduct your disciplinary inquiries.