Regardless of the nature of the offence that an employee is alleged to have committed, an employer is obliged to undertake a disciplinary hearing if warranted by the disciplinary code. Due to the needs of a business, employers find themselves saddled with the logistics involved in holding a disciplinary hearing.
The Labour Relations Act no 66 of 1995 envisages an informal internal disciplinary process. An internal hearing ought not to be as legally complex as a criminal trial (Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC)). The fundamental rule to be applied is that an employee must be advised of the charges against him / her in a manner that he / she understands, have reasonable time to prepare for the hearing and can ask questions (The Code of Good Practice: Dismissal Item 4).
Thus, the chairperson of an internal disciplinary hearing may be flexible and relax the rules of evidence to ensure that the process is smooth, efficient and does not impede workplace productivity. It may happen in practice, that an employer is informed of misconduct by a good Samaritan, a customer or an independent eyewitness.
In such circumstances, a chairperson may choose to hear this evidence via a speakerphone at the disciplinary hearing. This must be a last resort, as it is not ideal for witnesses to testify in this manner. This can only be accepted if that witness is prepared to testify at any subsequent proceedings, whether it is the CCMA, Bargaining Councils or even the Labour Court.
In addition, members are advised to get the full particulars of that witness, this includes the physical address, telephone number and preferably an identification number to ensure that the witness can be subpoenaed to any of these forums. If the witness does not testify at the CCMA proceedings or at similar forums, such evidence will be regarded as hearsay and be disregarded in totality by the Commissioner.
Beyond the fact of a witness testifying over a speakerphone it is imperative that the employee charged in a disciplinary hearing consents to this procedure. It is advisable that an employee gives his / her consent in writing and understands that the evidence obtained may result in their dismissal or any other disciplinary measure short of dismissal.
To summarize the above, a witness may give evidence via speakerphone, however this must be an absolute last resort and must be done with the consent of the accused employee.
Article by: Shakti Jainarain
CEO Dispute Resolution Official – Durban