BACK TO BASICS: A GUIDELINE ON HOW TO DEAL WITH HEARSAY EVIDENCE IN EMPLOYMENT RELATED DISPUTES

Monday, July 03, 2006
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Back to Basics: A guideline on how to deal with Hearsay Evidence in Employment related disputes
By Rosalind Jackson
 
Despite the fact that dealing with hearsay evidence is now encoded in section 3 of the Law of Evidence Amendment Act 45 of 1988 (‘the Evidence Act”), many lay people (who present at disciplinary hearings and/or arbitrations and/or chair disciplinary hearings) and certain CCMA and Bargaining Council Arbitrators labour under the misconception that any and all hearsay evidence is inadmissible.[1] Some Chairpersons and Arbitrators will grudgingly admit it but then afford it no weight. Neither approach is correct in law.
 
Two helpful Labour Court judgments which deal with the admissibility of hearsay evidence at length are Naraindath v CCMA & Others[2] (“the Naraindath case”) and Swiss South Africa (Pty) Limited v Louw NO & others[3] (“the Swiss South Africa case”). In the Naraindath case the court concluded that, in the circumstances the CCMA arbitrator had not committed a reviewable irregularity by admitting hearsay evidence. In the Swiss South Africa case the court concluded that the CCMA arbitrator had not committed a reviewable irregularity by rejecting hearsay evidence. These two cases are therefore useful in that they highlight where hearsay evidence should be admitted and where it should be rejected.
 
Naraindath v CCMA & Others
 
The employee was employed by the Department of Correctional Services (“the Department”) as a prison warden. He was dismissed after being found guilty of being in possession of prohibited drugs whilst on the premises of the New Prison in Pietermaritzburg. The employee challenged his dismissal at the CCMA.
 
The employee was unsuccessful at arbitration and thus took the arbitration award on review. He cited the following ground, inter alia, for review:
 The Commissioner committed a gross irregularity in the conduct of the arbitration proceedings by making a finding based on hearsay evidence.
 
The facts giving rise to this ground of review were that only two witnesses testified on behalf of the Department at the arbitration. One of the witness gave evidence on a procedural matter which is not relevant. The other witness (Ms Nkosi) chaired the disciplinary hearing of the employee. She handed in the record of the disciplinary proceedings and confirmed that it was a true reflection of the disciplinary proceedings.
 
The employee testified on the merits of the case. The Commissioner, however, rejected his direct evidence in favour of the record of the disciplinary hearing for the following reason:
 
at the disciplinary hearing the Department called three witnesses who testified that the employee was in possession of dagga at the time in question. The employee failed to challenge these witnesses at the disciplinary hearing. The employee failed to give a credible explanation on the charges against him. The Commissioner therefore found that there was no need to call the witnesses who testified on behalf of the Department, at the disciplinary hearing, because the employee had failed to challenge their evidence. As the reliability of their evidence had not been challenged the Commissioner concluded that there was no need for cross-examination. (The Labour Court upheld the approach adopted by the Commissioner.)
 
The employee’s representative made two points, namely:
 
No direct evidence was placed before the arbitrator to establish that the employee had committed the disciplinary breach which resulted in his dismissal.  He compared this with the fact that the employee testified at the arbitration on the merits of the case.
 
The Commissioner based his finding that the employee was guilty of the transgression exclusively on hearsay evidence. The employee’s complaint was that the evidence had not been tested by way of cross-examination.
 
The court then commented on the general conduct of arbitration proceedings by arbitrators appointed by the CCMA. It dealt with sub-sections 138(1) and 138(2) of the Labour Relations Act 66 of 1995 (“the LRA”) which provide, inter alia, that arbitrations should be conducted with the “minimum of legal formalities” and subject to the discretion of the presiding commissioner. Wallis AJ was of the view that the purpose of the LRA would be diminished if the Labour Court were to insist that CCMA arbitrators (appointed to resolve unfair dismissal disputes) conduct arbitrations by merely imitating the procedures adopted in courts of law and applying the rules of evidence which are applied in those courts. He stated that such an approach would be contrary to the express provisions of the LRA.
 
Thus Wallis AJ found that the employee’s complaint that the Commissioner relied solely on hearsay evidence was without foundation. Wallis AJ therefore concluded that reliance by an arbitrator on hearsay evidence which he/she is satisfie is reliable does not constitute a reviewable irregularity.
 
Swiss South Africa (Pty) Limited v Louw NO & others
Swiss South Africa (Pty) Limited (“Swiss South Africa”) is a “ground-handling” company. The employee worked in the passenger-handling division as a check-in agent. In this position she was responsible for checking in passengers who are going to board an aeroplane. Part of her duties was to ensure that passengers’ luggage did not exceed the fixed weight limit.
 
The employee was dismissed as a result of a complaint made by a passenger of Singapore Airline that he had been asked to tip the employee for purportedly waiving “their official payment” for excess luggage. The passenger allegedly handed her $120.00 in order to avoid any problems.
 
The employee referred a dispute to the CCMA for arbitration. Her dismissal was found to be unfair and Swiss South Africa was ordered to retrospectively reinstate her. Swiss South Africa subsequently took the arbitration award on review on the following basis, inter alia:
 
“The [Commissioner] committed a number of fundamental misdirections which deprived [Swiss South Africa] of a fair hearing. He also misconceived the nature of the enquiry by not applying his mind to whether or not the hearsay evidence should have been admitted under one of the exceptions to the hearsay evidence rule”.
 
The hearsay evidence referred to above was an e-mailed complaint sent as a result of a complaint by the passenger of Singapore Airline.
 
Cele AJ referred to section 3 of the Evidence Act.
 
The court then referred to the Labour Appeal Court decision in Southern Sun Hotels (Pty) Limited v SA Commercial Catering & Allied Workers Union & another[4]. In this case Zondo stated:
“… Further it must also be taken into account that, since the legislature intended hearsay evidence to be admitted in courts of law if to do so would be in the interests of justice, it is highly unlikely that the legislature would demand a higher test before hearsay evidence can be admitted by an administrative tribunal like the Industrial Court than the test to be applied by courts of law in the admission of hearsay evidence.”
 
Thus the court concluded that, depending on the facts of each specific case, hearsay evidence may be admitted by a CCMA arbitrator.
 
The court then went on to examine:
 
The nature of evidence:
A complaint was lodged by a passenger of Singapore Airline with Mr. Richard Lee of Singapore Airline. Mr. Lee set the complaint out in an e-mail. This email was ultmately forwarded to Swiss South Africa.
 
The purpose for which the evidence is tendered:
The e-mail was presented as being proof of the employee’s guilt. The admission of the e-mail would have been prejudicial to the employee as it “went to the merits of her defence” and if it were to be admitted she would have been denied the right to test the reliability of the evidence by way of cross-examination.
 
The probative value of the evidence
The court was of the view that the e-mail did not have good evidential value.
 
The reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends
Swiss South Africa failed to give any evidence as to why the passenger was unable to testify at the disciplinary hearing.
 
Any prejudice to a party which the admission of such evidence might entail
The court found that in the circumstances the interests of the employee outweighed the interests of Swiss South Africa as the employee stood to lose her job on the basis of an untested e-mail.
 
The court accordingly concluded that the Commissioner did not commit a reviewable irregularity by rejecting the hearsay evidence.
 
The Principles Relating to Hearsay Evidence

From the Naraindath and Swiss South Africa cases and the above analysis it is clear that hearsay evidence is not automatically inadmissible; nor is it automatically admissible. Whether or not the hearsay evidence should be admitted will depend on the circumstances of each case and the nature of the hearsay evidence. This is not the end of the investigation. Should the evidence be found to be admissible, the arbitrator/chairperson will then have to determine the weight to be attached to such evidence.
 
When considering whether or not hearsay evidence is admissible at arbitrations and disciplinary hearings one needs to consider whether or not it is in the interests of justice to admit such evidence[5].
 
The following factors should be taken into consideration when contemplating whether or not hearsay evidence should be admitted:
 
·         ‘The nature of the proceedings;
·         The nature of the evidence;
·         The purpose for which the evidence is tendered;
·         The probative value of the evidence;
·         The reason the evidence is not given by the person upon whose credibility the probative value of such
·         evidence depends; and
·         Any prejudice to a party should such evidence be admitted[6]’.
 
Clearly hearsay evidence should be admitted if it is supported by the testimony of the person on whose credibility the probative value of such evidence lies and it is generally admissible if it is reliable[7].
 
In employment related disputes the first step in determining whether or not hearsay evidence should be admissible is by reference to the LRA. Unfortunately the LRA is silent on how hearsay evidence should be approached. Section 138 of the LRA, however, provides that arbitrations must be conducted with the minimum of legal formalities. Thus this section offers some guidance on how to deal with issues such as the admissibility of evidence[8]. However, it is section 3 of the Evidence Act that is the determining factor for whether hearsay evidence should be admitted or rejected.
 
Arbitrators and persons chairing disciplinary hearings clearly have a discretion to admit hearsay evidence and should generally adopt a less formal approach to hearsay evidence than the courts[9].
 
However, an Arbitrator or chairperson is required to go beyond merely determining whether or not hearsay evidence is relevant. He/she is required to determine what weight to attach to the evidence[10].
 
When determining the weight to be attached to hearsay evidence the Arbitrator or chairperson is obliged to consider:
 
·         the relevance of the hearsay evidence;
·         the reasons given for failing to call the witness concerned; and
·         the degree to which hearsay evidence is supported by independent evidence[11].
 
The old Industrial Court outlined the following relevant factors for assessing the weight to be attached to hearsay evidence:
 
·         why is the statement hearsay evidence?
·         in what circumstances was the hearsay statement made?
·         are there factors which indicate that the hearsay evidence was clear and consistent?
·         is evidence led at the arbitration which corroborates the hearsay evidence?
·         did the person implicated in the hearsay statement testify before the arbitrator and what was the intrinsic
·         quality of his referred statement?[12]
 
Conclusion
It is consequently clear that whether or not hearsay evidence should be admitted at CCMA arbitrations or disciplinary hearings will depend on the circumstances of each case.
 
However, it is trite that the employer bears the onus of proving that a dismissal was procedurally and substantively fair. Should the employer fail in this regard a decision will be made in favour of the employee. Thus an employer who leads uncorroborated hearsay evidence runs a serious risk that it will fail to discharge the onus of proving that the dismissal was fair.
 
Relying on Hearsay Evidence
 
In the event that one is relying on hearsay evidence one would need to establish, inter alia, that:
 
·         it is in the interests of justice to admit such hearsay evidence;
·         the evidence is reliable;
·         the evidence is relevant;
·         there is a sound reason for submitting hearsay evidence; and
·         there is independent evidence to support the hearsay statement.
 
Once it has been established that the hearsay evidence is admissible then steps will need to be taken to ensure that significant weight is placed on the evidence. To do this one will need to establish that:
 
·         there is a sound reason for tendering hearsay evidence;
·         there are factors which indicate that the hearsay evidence is clear and consistent; and
·         evidence is led to corroborate the hearsay statement.
 
Determining the admissibility of Hearsay Evidence
 
In the event that one is arbitrating a dispute at the CCMA or chairing a disciplinary hearing one would need to consider:
 
·         the nature of the proceedings;
·         the nature of the evidence;
·         the purpose for which the evidence is tendered;
·         the probative value of such evidence;
·         the reason the evidence is not given by the person upon whose credibility the probative value of such
·         evidence depends; and
·         any prejudice to a party should such evidence be admitted.
 
If the evidence is subsequently admitted then one would need to decide what weight to attach to the evidence by examining the following:
 
·         the relevance of the hearsay statement;
·         the reasons given for failing to call the witness concerned;
·         the degree to which the hearsay evidence is supported by independent evidence;
·         the circumstances in which the hearsay statement was made;
·         is there evidence which indicates that the hearsay statement is clear and consistent;
·         was evidence led at the arbitration/disciplinary hearing which corroborates the hearsay statement;
·         did the person implicated in the hearsay testify at the arbitration and was his evidence reliable?
 
 

[1] Radebe v Way Industries [2000] 8 BALR 921 (CCMA). In this case the Commissioner makes the sweeping statement that “it is trite law that such [hearsay] evidence is inadmissible]

[2] [2000] 6 BLLR 716 (LC)

[3] [2006] 4 BLLR 373 (LC)

[4] (2000) 21 ILJ 1315 (LAC)

[5] Naraindath v CCMA, supra; Article by N Whitear-Nel: Hearsay Evidence at Disciplinary Hearings and                               CCMA Arbitrations (2001) 22 ILJ 1481; Metrorail Services v United Transport & Allied Workers Union obo Ndou (2002) 23 ILJ 1649 (BCA)

[6] s3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988; Naraindath v CCMA, supra; Hearsay Evidence at Disciplinary Hearings and CCMA Arbitrations, supra; Metrorail Services v United Transport & Allied Workers Union, supra

[7] s3(1)(c) of the Law of Evidence Amendment Act, supra; Moolman Mining Projects v Mahlatsi & Others 1997 (2) LC 1.17.1 (LC); FAWU & another v Labuscagne & others 1999 (8) LC 1.11.21; Naidoo v Snap-On-Tools – PST Africa (Pty) Limited (2000) 5 LLD 326 (CCMA)

[8] Naraindath v CCMA, supra; van den Berg & Another v Rainbow Farms (Pty) Ltd (2003) 24 ILJ 1023 (CCMA); Hearsay Evidence at Disciplinary Hearings and CCMA Arbitrations, supra

[9] Metrorail Services v United Transport & Allied Workers Union, supra; van den Berg & Another v Rainbow Farms, supra

[10] Metrorail Services v United Transport & Allied Workers Union, supra; Hearsay Evidence at Disciplinary Hearings and CCMA Arbitrations, supra

[11] Metrorail Services v United Transport & Allied Workers Union, supra; Hearsay Evidence at Disciplinary Hearings and CCMA Arbitrations, supra

[12] SACCAWU v OK Bazaars (1929) Ltd (1992) 13 ILJ 436 (IC); Hearsay Evidence at Disciplinary Hearings and CCMA Arbitrations, supra