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Yes .. provided the arbitrator does so in the presence of the opposing party. When I trained commissioners, I advised that at the beginning of an arbitration they ask the parties if they are inexperienced and if so spend some time explaining the process to be followed and basic rules of evidence. Where I suspect one or both parties are inexperienced, in dismissal cases for misconduct and incapacity I go through the elements required to prove their case as per Schedule 8 of the LRA .. on a flipchard, if one is available!!
It is a basic rule of evidence that direct evidence carries much greater weight than hearsay evidence. Direct evidence is the statement of a person who perceived the incident which they are describing with his/her own senses. In other words, it is the difference between a witness who observes something directly and the witness who hears about it after the fact.
Hearsay evidence must be treated with extreme caution as it is unreliable. It relies upon the credibility of a person who is not present and therefore cannot be cross-examined.
The Law of Evidence Amendment Act 45 of 1988 radically altered the traditional approach to hearsay. In terms of this statute hearsay evidence is permissible if:
• The party against whom the evidence is to be adduced agrees to the admission of hearsay as evidence;
• Where the originator, who is alleged by the witness to have made the statement, will himself testify, and
• Where the court is of the opinion that such evidence should be admitted in the interest of justice.In the arbitration of SACCAWU v OK Bazaars (1992) 13 ILJ 436 (ARB) (the arbitrator was Judge Edwin Cameron), hearsay evidence was allowed based on 3 considerations.
• Arbitration proceedings by their very nature are less formal than traditional judiciary procedures. Technicalities and formalistic objections should not be encouraged;
• ‘It is clearly desirable in the interests of fairness between management and its employees that all the material management has for feeling aggrieved at the conduct of an employee should be aired and that the arbitrator should have the benefit of the accused employee’s response to the material in question. Refusing to admit hearsay evidence will obstruct this process. What is more, in everyday life one often considers or reacts to hearsay statements. The employment context is no different. Excluding hearsay evidence altogether would therefore impede a fair and proper exploration of potential sources of industrial conflict’
• In cases of assault and intimidation in the workplace, victims are often too scared to give evidence. Fairness requires that the evidence should in these circumstances at least be heard and taken into consideration at an arbitration.Despite all of the above, the party introducing hearsay evidence at a disciplinary hearing would still have to convince the chairperson of the reasons why the hearsay evidence is good or has any value, i.e. why it should be given any weight by the chairperson when making his/her decision on guilt.
I would just add that my approach, when chairing an arbitration, is to admit the hearsay evidence and weigh it against all the other evidence that has been led. In the scenario presented, I do not think the evidence would carry much weight since it is the evidence of a single witness which, in any event, needs to be treated with caution.
I follow a simple rule: the difference between will not (misconduct) and cannot (incapacity). An addict (of whatever kind – alcoholic, drugs, sex etc) cannot control their addiction without help. Therefore the employee’s behaviour is indicative of incapacity and should be treated as such. If after rehab the behaviour persists (ie the gambling not the theft) then the employer should convene an incapacity hearing to determine whether there are alternatives to dismissal (transfer the employee to a position where they do not have access to money) or dismiss.
A “Without prejudice” communication made by one party to another in an attempt to negotiate settlement of a dispute or a debt is inadmissible in a court (and this would apply equally to the CCMA) and therefore a party to the proceedings cannot use such communication as evidence. The following are examples of exceptions to the rule.
1. Fraud or Misrepresentation: If the communication involves fraud, misrepresentation, or any other form of dishonesty, it can be used as evidence.
2. Waiver: If both parties agree to waive the “without prejudice” privilege, the communication can be admitted.
3. Establishing an Agreement: If the communication is used to prove that a settlement agreement was reached, it can be admitted.
4. Costs: In some cases, “without prejudice” communications can be used to determine the issue of costs in litigation.The only private arbitrations which are not permissible (in terms of the Arbitration Act) (a) any matrimonial cause or any matter incidental to any such cause; or (b) any matter relating to status. Anything else can be resolved in terms of the Arbitration Act. Therefore, provided the arbitration is conducted in terms of the provisions of the Arbitration Act (there is a written agreement between the parties which provides for the issue to be adjudicated by a named panel and terms of reference), the award would be final and binding and only subject to review in very narrow circumstances.
This employer’s policy is on all fours with the provisions relating to sick leave in the BCEA – an employee only has to produce a medical certificate if they are absent from work for more than two days in order to be paid for the days on which they were ill. This has nothing to do with discipline.
An employee bears the burden of proving that they were incapable of coming to work because they were ill. The probative value of a medical certificate is the same as any other document – the employer can reject the certificate as proof that the employee was ill and the employee would have to adduce other evidence to prove that they were incapable of coming to work due to ill health. The position would be the same if the employee does not produce a medical certificate.
I don’t think you become entitled to “earnings”until the contract of employment is in place and you have actually worked in order to “earn” a wage or salary.. Therefore applicants for employment would have to refer their dispute to the Labour Court unless they are an existing employee applying for a position in house.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
I totally agree with Ali. The latest ruling from the Labour Court in this regard lends support to it. See NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) which held that it does not matter that employees used dagga in private, that they posed no danger on the day they tested positive for dagga, that their period of employment was not insignificant or that they had a clean disciplinary record. Where the employer has consistently applied a ‘Zero Tolerance’ alcohol and drug policy due to its hazardous workplace and its duty to provide a safe working environment, dismissal will be fair.
The employer was wrong because the existence of a suspension does not prevent the lodging of a grievance.
Like Patrick, I believe the employee’s version (that the pill given by the employer was the cause of his drowsiness) is more probable than that of the employer.
If I was representing the employee I would argue as follows.
• The definition of “dispute” includes an “alleged dispute”
• The employee has the right to refer any dispute or alleged dispute to the CCMA.
• The clause in the contract which prohibits the employee from referring his dispute to the CCMA is unlawful in terms of section 5(3) of the LRA and therefore it is unenforceable.
