The assessment of evidence, in all relevance, is not as strict in the CCMA as it is in a court of law when it comes to civil, and even more so, criminal matters. Section 138(1) of the Labour Relations Act speaks to the fact that in arbitration, for example, the Commissioner may conduct proceedings in a manner that he or she deems appropriate and with minimum legal formalities. Section (2) similarly speaks to the fact that a party may give evidence, call witnesses, question the witness of another party and address closing arguments all based on the discretion of the Commissioner. The use of the word may, in my opinion, essentially says that the admissibility of evidence, its relevance, whether its direct or indirect and whether it effectively proves or disproves a case is therefore up to the skill to assess, and the discretion of the Commissioner and the Commission.
If we take a step back to section 192 (1) of the Labour Relations Act, it states that in any proceedings concerning dismissal the employee must establish the existence of the dismissal while section (2) states that only when the existence of the dismissal is established the employer must prove the dismissal is fair. So essentially one would assume that the employee would be expected to give evidence as proof that the dismissal took place. Yet the referral form to the CCMA is essentially one taken without supporting documents or any clear direct evidence. The evidence is many times hearsay or verbal while the employer on the other hand is expected to provide procedural, direct evidence of fairness.
The necessity of evidence or the potential request for proper evidence when it comes to employees referring cases to the CCMA is illustrated in the annual report on the CCMA 2016/17 financial year that the CCMA had 188 449 referrals alone. This was a 5 % increase from the 179 528 referrals from the previous financial year. This relates to a rate of 745 new cases referred every working day. And seeing as how we are at the end the 2017/18 financial year this is not a number I see diminishing with a CCMA referral process that can start, many a times, without the proper request, use and assessment of relevant evidence.
It ultimately comes down to the fact that the attachment of evidence to the CCMA referral document may have the potential to enhance the ability of the Commission to channel its resources into addressing the credibility of cases brought before it. The goal being to create a referral process that is more stringent and based on more concrete, relevant evidence to best serve both the employer and the employee. And maybe just maybe decrease their workload…
Article by: Elrayé Julius
CEO Dispute Resolution Official – Nelspruit