The time delay between the internal disciplinary hearing taking place and the matter being set down for arbitration at the CCMA or Bargaining Council could take a couple of months or even much longer. This delay could result in a situation arising where the witness or witnesses who testified at the internal hearing are unavailable for the arbitration. The reason for the unavailability could vary, for example the witness could have passed away or have left the work place and therefore cannot be located, imprisoned, etc. The employer is therefore unable to subpoena the witness or witnesses for the arbitration and will have no other option but to rely on the transcripts of the internal disciplinary hearing as evidence.
Admitting such evidence at the arbitration will be deemed hearsay evidence. Hearsay evidence is evidence, whether oral or in writing, with probative value of which depends upon the credibility of any person other than the person giving such evidence. The problem with hearsay evidence, especially at arbitration is the amount of weight that commissioners place on this type of evidence.
In a recent judgement in the Labour Court (Minister of Police and RM M & Others, JR56/14, 2016 LC) the issue regarding transcripts of an internal hearing admitted as hearsay evidence was dealt with, as well as the admissibility and weight of hearsay evidence in arbitration proceeding. The employee (a warrant officer in the SAPS (South African Police Service)) was charged after it was discovered that he allegedly violated his minor child without her consent. He prejudiced the administration, discipline and efficiency of the SAPS and further contravened the SAPS code of conduct. During the course of the internal hearing the key witness – the employee’s daughter, gave evidence of the offence and the hearing was deemed to be procedurally fair. The employee was found guilty of the misconduct and dismissed. The employee referred his dismissal to the Safety and Security Sectoral Bargaining Council for arbitration. The key witness however could not be located to give evidence at the arbitration stage and since the matter started de novo (anew) at arbitration the key witness was required to present evidence in person again. The only evidence the employer could provide was the transcripts of the internal hearing as hearsay evidence in the interest of justice. The commissioner placed little weight on this evidence and in absence of evidence in person the commissioner awarded reinstatement for the employee. The matter was referred to the Labour Court for review in which the judge reviewed and set aside the commissioner’s award.
The importance of the judgement is that the judge deemed the transcripts were not ordinary hearsay evidence but hearsay evidence of a special type. The judge therefore set guidelines for arbitration proceedings in which hearsay evidence such as a transcript might be used as prima facia (presumed to be true unless it is disproved) proof against the employee where a witness or witnesses are not available to testify for reasons out of the employer’s control. The hearsay evidence should:
(1) Be contained in a record which is reliably accurate and complete;
(2) Be tendered on the same factual dispute;
(3) Be bi-lateral in nature. In other words, the hearsay should constitute a record of all evidence directly tendered by all contending parties;
(4) In respect of the allegations, demonstrate internal consistency and some corroboration at the time the hearsay record was created;
(5) Show that the various allegations were adequately tested in cross-examination;
(6) Have been generated in a procedurally proper and fair circumstances.
It is therefore vitally important that employers utilise the services of competent and well trained labour law advisors to conduct their internal disciplinary hearings, as internal transcripts play an important role at the arbitration stage.
Article by: Ryan Chetty
Dispute Resolution Official: Durban