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 Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?