During an arbitration process, an arbitrator is tasked with making a decision. In order for him/her to make such a decision, any and all relevant evidence needs to be assessed. Such evidence falls within 3 broad categories, namely, documentary evidence, witness testimony and miscellaneous items such as videotapes, photos and any other relevant items. All three of these types of evidence are of utmost importance to prove the employer’s case, but witness testimony is the most important of all as it is often the best form of evidence.
Frequently, employers regard arbitration matters at the CCMA or Bargaining Councils as a waste of effort, mainly because of the period of time that they, and the witnesses, have to spend at the CCMA or Bargaining Council. Time which could have been spent being productive at work. Subsequently, many employers are of the opinion that they are unable to release witnesses to testify during an arbitration process due to workload. Consequently, they may offer a written statement to be presented to the arbitrator for consideration instead. A further reason put forward by many employers is that they do not wish to inconvenience a person to assist in proving the employee’s guilt. While this might be true and valid reasoning on the part of the employer, such reasoning will not be accepted in order to excuse a witness from testifying.
A simple explanation to the above situation, is that such witness statements and other indirect evidence amount to hearsay evidence. Section 3(4) of the Law of Evidence Amendment Act, No. 45 of 1988 defines hearsay evidence as “evidence, whether oral or in writing, the probative value of which depends upon the credibility of someone other than the person giving such evidence”. Section 3(1) of the Law of Evidence Amendment Act states: hearsay evidence shall not be admitted as evidence unless the parties agreed to the admission thereof as evidence, or the person upon whose credibility the probative value of such evidence depends, testifies at the proceedings or where the evidence is admitted in the interest of justice.
In Taku v Thabo Sekhanisa NO & others (2019), the Labour Court (LC) considered the admissibility of hearsay evidence. Ms Hughes was a passenger on an SAA flight to Lagos and had accused the employee at the check-in counter of attempting to solicit a bribe from her. She did not want to get involved for fear of victimisation, but submitted a complaint via email. Based on this, the employer instituted disciplinary action against the employee. Ms Hughes testified at the disciplinary hearing, and the employee was dismissed.
The employee challenged his dismissal at the CCMA. Ms Hughes was not present as a witness at the arbitration process, but her email was presented as evidence. There was also no other first-hand evidence led as to what transpired between the employee and Ms Hughes at the counter. The arbitrator found the employee’s version to be improbable and found in favour of the employer. The employee then opted to take the matter on review to the Labour Court.
The Labour Court found Ms Hughes’ email to be hearsay evidence. According to the Law of Evidence Amendment Act, hearsay evidence will not be allowed into evidence unless the parties agree to admit it as evidence, or the person on whose credibility the value of such evidence depends, actually testifies. Based on these two requirements not being met at the arbitration process, the Labour Court found that the arbitrator should not have accepted the email as evidence. The Labour Court set aside the award and referred the matter back to the CCMA for another hearing.
This allowed for SAA to arrange that Ms Hughes is present at the second arbitration hearing and have another bite at the cherry. However, employers should always remember that they must prove the employee’s guilt on a balance of probabilities, and this entails presenting all evidence needed to do so. It is advised to make use of a labour expert to determine which witnesses are required to corroborate the relevant documentary evidence.
Article by: Carine van Blerk
Dispute Resolution Official – Cape Town