Hearsay evidence in dismissal proceedings is often encountered in workplaces. An employee may, for example, be accused of misconduct based on a complaint made by another employee who is unwilling or unable to testify. The question then arises: can an employer rely on hearsay evidence when deciding whether an employee should be dismissed? The answer is not simply yes or no. Hearsay is not automatically inadmissible in employment disputes, but it must be approached carefully and fairly.

What is Hearsay Evidence?

Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (LEAA) defines hearsay evidence as evidence, whether oral or written, “the probative value of which depends upon the credibility of any person other than the person giving such evidence”. In practical terms, hearsay arises where a person gives evidence about information obtained from someone else, and the value of that evidence depends on whether the other person was truthful and reliable. For example, if an investigator testifies that an employee told them that a colleague had committed misconduct, the investigator’s evidence may constitute hearsay if it is being relied upon to prove that the misconduct occurred.

When May Hearsay Be Admitted?

Section 3(1) of the LEAA provides that hearsay may be admitted where:

  • the parties agree to its admission;
  • the person upon whose credibility the probative value of the evidence depends, testifies; or
  • the evidence is admitted in the interests of justice, having regard to the factors set out in section 3(1)(c).

These factors include the nature of the proceedings, the nature and purpose of the evidence, its probative value, the reason why the original source is not testifying, any prejudice that admission may cause, and any other relevant consideration. The fact that evidence is hearsay therefore does not automatically mean that it must be excluded. Equally, the informality of labour proceedings does not mean that hearsay can simply be accepted without proper consideration.

Case Study

The Labour Appeal Court considered this issue in Exxaro Coal (Pty) Ltd v Chipana and Others [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC). The employee was dismissed for alleged misconduct. A substantial portion of the employer’s evidence at the disciplinary hearing and subsequent CCMA arbitration consisted of hearsay. Certain complainants whose allegations were relied upon by the employer were not called to testify. At arbitration, the commissioner excluded the hearsay evidence because the employee had not consented to its admission. The commissioner did not properly consider whether the evidence should nevertheless be admitted in the interests of justice under section 3 of the LEAA. The Labour Appeal Court found that this approach was incorrect. The Court confirmed that section 3 does not permit the wholesale admission of hearsay, but nor does it mean that hearsay is automatically excluded where a party has not consented to its admission. A commissioner must properly consider the relevant factors and ensure that fairness is not compromised.

Timing Is Critical

One of the most important lessons from Exxaro concerns when the issue of hearsay should be addressed. The commissioner had allowed the hearsay evidence to be presented and only ruled on its admissibility in the final arbitration award. The Labour Appeal Court found that this was unfair. A party should know, as early as reasonably possible, whether disputed hearsay evidence will be considered and on what basis. This allows the parties to understand the case they must meet and, where necessary, to challenge the evidence or produce further evidence in response. The Labour Appeal Court accordingly held that a commissioner should be alert to the introduction of hearsay evidence, require parties to identify their intention to rely on it, explain the applicable approach where appropriate, and make a timeous ruling on admissibility. The issue should not be left until closing argument or the final award.

Informality Does Not Mean “Anything Goes”

Section 138 of the Labour Relations Act 66 of 1995 (LRA) allows commissioners to conduct arbitrations in a manner appropriate to determine the dispute fairly and quickly, with the minimum of legal formalities. This does not, however, give a commissioner an unfettered discretion to accept or reject hearsay evidence. The Exxaro judgment makes it clear that the informal nature of CCMA proceedings must be balanced against the requirement of fairness. A commissioner must still properly engage with the question of whether hearsay should be admitted and must ensure that both parties have a fair opportunity to deal with it. It is also important to distinguish between admissibility and weight. Even where hearsay is admitted, it does not necessarily follow that it should be given significant weight. The decision-maker must consider the evidence as a whole, including its reliability, any corroborating evidence, contradictions, the circumstances in which the information was obtained, and the reason why the original witness is unavailable.

Practical Implications For Employers

Employers should not assume that hearsay evidence will automatically invalidate a disciplinary finding. However, where direct evidence is reasonably available, it should generally be obtained. Where an employer intends to rely on hearsay, it should:

  • identify the source of the information and, where possible, why that person is unavailable to testify;
  • give the employee a meaningful opportunity to respond to the substance of the allegation;
  • consider whether the hearsay is corroborated by independent evidence;
  • avoid relying on untested hearsay as the sole basis for a serious finding of misconduct where there is no compelling justification for doing so; and
  • ensure that the disciplinary chairperson properly considers the reliability and weight of the evidence as part of the evidence as a whole.

If the matter proceeds to the CCMA, any hearsay relied upon should be identified and dealt with at an early stage. A commissioner should not simply allow the evidence to be presented and postpone the question of admissibility until the final award.