[Friday, November 20, 2009 11:25:58]

The onus is on an employer to prove, on a balance of probabilities at a disciplinary enquiry that an employee is guilty of misconduct. In order to discharge this onus, an employer must produce admissible and reliable evidence at the enquiry. The fact that disciplinary enquiries are internal and of a less formal nature than proceedings in a court, does not detract from the duty of the employer not to introduce hearsay evidence.

In Moloko v Commissioner Diale & Others (2004) 25 ILJ 1067 (LC), the Labour Court reviewed and set aside a CCMA arbitration award because the commissioner allowed hearsay evidence in the form of an unsworn statement (i.e. not made under oath) by a customer who did not testify at the disciplinary hearing or at the arbitration. The only other evidence relied upon by the employer to prove fair dismissal was a statement by the manager of the supermarket that the complainant had pointed out the employee to him and a copy of unauthenticated video footage taken at the supermarket. The latter two pieces of evidence were therefore rejected by the Court.

Similarly in Metrorail Services and United Transport & Allied Trade Union on behalf of Ndou (2002) 23 ILJ 1649 (BCA), the arbitrator noted that although arbitrations follow less stringent rules than at court, the evidence introduced at the arbitration was not reliable because of the fact that it constituted hearsay and was therefore not admissible.

It is therefore suggested that the best possible evidence which is also reliable and credible should be obtained in any disciplinary hearing. This will ensure that an arbitrator or the Labour Court does not reject such evidence down the line, causing the employer to pay compensation to the employee.

Rudi Kuhn

Labour law attorney, Pretoria