Article 31/2022

What are the three scenarios identified in Hillside Aluminium v Mathuse (2016) 27 SALLR 29 (LC) covering the utilisation of a record/transcript of an internal disciplinary enquiry to be utilised at the CCMA or bargaining council and recently followed by the constitutional court in AMCU v Ngululu Bulk Carriers (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC)?

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Scenario 1

This scenario entails no agreement on the authenticity of the documents or, alternatively, such authenticity is disputed.  If a party wants to rely on a document, it bears the onus to prove the authenticity by leaving evidence.  If authenticity is not proven or admitted:

  • the document is inadmissible
  • cannot be used in cross-examination
  • cannot be considered as evidence

Scenario 2

This scenario covers an agreement that the documents are what they purport to be.  If a party wants to rely on the document, it does not have to prove the authenticity and evidence can be led relying on the documents on the basis of what it purports to be.

However, the following principles are applicable:

  • the documents must be introduced as evidence and cross-examination on such documents is permissible
  • the presiding officer can accept the document as evidence insofar as it was properly introduced by a witness
  • if a document is not introduced as evidence, the presiding officer cannot mero motu consider such document as evidence merely because it was included in the trial bundle (see, further, Interstate Bus Lines v Daniel Phakwe (2017) 38 ILJ 915 (LC))

Scenario 3

This scenario covers an agreement that the documents and the bundle should be regarded as evidence.  Therefore, the presiding officer is entitled to accept the contents of the document as if evidence was adduced.  Even if no witness testifies about the authenticity of the document and its content, it can be considered as relevant and admissible evidence (see further, Interstate Bus Lines (supra)).

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?