In the recent, unreported judgement of Mashigo v SSSBC, under case number JR 269/2022, one of the questions which arose was whether a record or minutes from a disciplinary hearing could be submitted into evidence without them being substantiated by means of oral evidence by the same witnesses who testified at the same disciplinary hearing.
Prior to the arbitration, the representatives of the respective parties agreed that the record of the disciplinary hearing would be submitted into evidence and that no witnesses would be called to that effect. The disciplinary record, its contents, and the evidence given by witnesses under oath were disputed. The parties accordingly agreed that the disciplinary minutes be submitted without oral evidence. When the Commissioner made his award, he ruled that the dismissal was fair, and the Applicant took the matter on review in the Labour Court.
It is essential for employers to note the Labour Court’s outcome regarding this issue. The Court ruled that when evidence is given at a disciplinary hearing, under oath, such evidence may be submitted as documentary evidence if the parties agree thereto. The record of the disciplinary hearing was not placed in dispute; therefore, no oral evidence was needed to substantiate or oppose what was said. This view was supported by Hillside Aluminium (Pty) Ltd v Mathuse and Others (D178/2014)  ZALCD 12; (2016) 37 ILJ (LC) . In this matter, the Court held that when parties agree that documentation or records should be regarded as evidence and no witnesses will be called to testify with regards to that specific documentation, the presiding officer or Commissioner may accept that such documents are what they purport to be and that they can be considered as relevant and admissible.
Therefore, employers are reminded to keep a detailed record when conducting a disciplinary hearing. If the evidence given by the witnesses at such a hearing is contested and placed in dispute any time before or during arbitration proceedings, it would be advisable to call the witnesses, initiator, and chairperson to testify regarding the documentation or record. It should, however, be noted that when such a hearing record is not placed in dispute, the record may be provided to the parties’ representatives and the presiding Commissioner as evidence. The presiding Commissioner can accept the same documentation and make a ruling accordingly.
Article by: Kenneth Lennox
Dispute Resolution Official – CEO Bloemfontein