Importance of presenting evidence correctly

During disciplinary and arbitration proceedings, the employer has a responsibility to present evidence to the chairperson or commissioner to prove its case.  Evidence is defined as: “the available body of facts or information indicating whether a belief or proposition is true or valid”. It is thus the proof of the employer’s argument and not just the argument itself.

Employer’s responsibility

It has however recently been noted that employers tend to neglect this responsibility of adducing evidence to acquire, compile and prepare evidence for the disciplinary hearing or arbitration.

This consequently negates the chairperson’s ability in conducting the hearing seeing as he will need to hear evidence from both sides to make an objective decision regarding the matter. This neglect will also negatively affect the employer’s case should the matter be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Case law #1

In the case of NUMSA obo Mnisi and First National Battery (2007) 16 NBCCI, employees were accused of stealing batteries from their workplace. During their disciplinary hearing, a tape recording was introduced as evidence in the latter stages of the hearing. The tape recording contained a confession by one employee that implicated the others. Despite objections by the union, the tape was admitted, leading to the dismissal of the applicants.

At arbitration, the employer failed to produce direct evidence linking the applicants to theft, relying solely on testimony from disciplinary officials. Shockingly the crucial tape recording allegedly went missing and instead of calling the employee who made the recording to testify, the employer decided to only introduce a written statement from the employee as evidence. The commissioner stressed the employer’s responsibility to prove fairness in dismissals, emphasising the careful evaluation of evidence in arbitration. With no direct evidence and the missing tape, the commissioner found the dismissal unjustified. Furthermore, the admission of the tape without allowing cross-examination of the aforementioned, was deemed unfair.

Case law #2

In another case, Moloko v Ntsoane and Others (JR 1568/02) [2004] ZALC 35, unauthenticated video footage together with a written unsworn statement was introduced as evidence against an employee in disciplinary proceedings. The employee was later found guilty and subsequently dismissed. In both the hearing and the arbitration proceedings, the only evidence from the complainant was an unsworn statement, which in the opinion of the court amounted to hearsay evidence, seeing that the statement was never affirmed by the maker thereof. Coupled this with the unauthenticated video footage, the court found the dismissal of the employee substantively and procedurally unfair.

Key points to take note of:

• Appoint a qualified person to chair disciplinary hearings who is knowledgeable in both labour law as well as the law of evidence;
• Evidence presented at hearings need to meet the requirements in terms of the law of evidence in order to be admissible;
• Accused employees should be given the chance to cross examine or dispute evidence presented by the employer;
• If inadmissible evidence is considered when dismissing an employee, the dismissal would be unfair.

It is clear that if an employer does not introduce or present evidence correctly at disciplinary hearings or arbitrations, serious consequences may follow such as the employee’s dismissal being declared unfair. The employee may further be awarded compensation, or even be reinstated.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.