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)

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.

To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?

The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:

(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]

To what extent is it permissible to utilise the plea bargaining process in industrial relations and labour law as contained in s204 of the Criminal Procedure Act, 51 of 1997, as amended?

Should an employer conclude a plea bargain with one of the employees involved in the alleged misconduct, to what extent will the other employees with whom the employer has not concluded a similar plea bargain agreement be entitled to raise the issue of inconsistent treatment? This article provides answers to the above issues and sets out the approach adopted by the labour court in Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.