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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)

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?