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Utilisation By An Arbitrator At The CCMA Or The Relevant Bargaining Council Of A Record Or Transcript Of An Internal Disciplinary Enquiry

Labour Edge

What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:

(a)     where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;

(b)     where the parties reached an agreement as to what such documents purport to portray?;

(c)     where the parties reached an agreement that the documents should be regarded as evidence?

The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

 

 

According to the labour court in casu, the following principles govern the authenticity or status of the transcript of internal disciplinary proceedings in subsequent proceedings before, for example, the CCMA:

Scenario 1

  1. such scenario exists where there is no agreement between the parties on the authenticity of such documents or, alternatively, the authenticity is disputed;
  2. in such an instance, a party wanting to rely on such document bears the onus to prove such authenticity by leading evidence;
  3. if the authenticity is not proven or admitted, the following consequences exist, namely:

(a)      the said document is inadmissible as evidence; and

(b)     the said document cannot be used in cross-examination;

Scenario 2

  1. such scenario entails the parties reaching an agreement as to what such documents purport to portray, namely, being the said transcript of the said disciplinary enquiry;
  2. in such an instance, the party wanting to rely on the document does not have to prove its authenticity and could lead evidence and rely on the document on the basis that it is what it portrays;
  3. the document, however, is required to be introduced as evidence and cross-examination on such documents is permissible;
  4. the commissioner is entitled to accept the document as evidence insofar as it was properly introduced by witnesses;
  5. if the said document or part thereof has not been introduced as evidence, the commissioner may not mero motu consider such document as evidence merely because it was included in the arbitration bundle;

Scenario 3

  1. this scenario entails an agreement between the parties that the documents in the bundle should be regarded as evidence;
  2. in such circumstances, the CCMA commissioner is entitled to accept the contents of the documentary evidence as if it were evidence so adduced;
  3. even if no witnesses testified about the disciplinary enquiry it may, under such circumstances, be considered as relevant and admissible evidence.

[1]          (2016) 37 ILJ 2082 (LC); [2016] 10 BLLR 1041 (LC); (2016) 27 SALLR 29 (LC)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?