Discipline and Dismissal

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We receive numerous enquiries on our Internet advice facility regarding the admissibility of things like tape recordings as evidence, or the admissibility of written statements without the deponent being present. Such instances are regarded as hearsay evidence, and generally such evidence is not admissible.


However, it may be admissible under certain circumstances. The case of NUMSA obo Adam/VWSA (Pty) Ltd [2002] 9 BALR 967 (CCMA) included the issue of the admissibility or otherwise of a written statement  by the alleged victim of sexual harassment. The accused was dismissed for allegedly sexually harassing and raping a female colleague.


In argument, the respondent employer called a qualified psychologist, who held a Masters degree in Phychology, and had some 16 years experience in private practice, as a witness to give expert testimony. The psychologist testified that the victim of the sexual harassment and rape was seriously traumatized by the experience, and although she had chosen to give evidence at the internal enquiry, she had broken down and was unable to continue.

 

The psychologist testified that although the victim was able to go to work, having  to come and testify in the arbitration was a completely different matter. The psychologist pointed out that at work, when people make remarks, the victim can simply walk away and ignore them, but in arbitration when a question is asked she cannot choose not to answer it.


It was his view that allowing the victim to relive the incident at the arbitration might cause serious damage to her, possibly damage that could be disastrous. If the victim was forced to come and testify she would be re-traumatised and forced to re-live the whole incident over again.


The CCMA Commissioner in this matter gave careful consideration to all the provisions of Section 3 of the Evidence Act , finally deciding that it would be more in the interests of justice to admit this hearsay evidence than it would be to exclude it. In another case, NUMSA obo Mnisi , First National Battery [2007] 10 BALR 907 (NBCCI), the issue was around the admissibility of a tape recording.


At the disciplinary hearing, the presiding officer relied on a tape-recorded confession by the employee in which the accused employee was implicated in certain thefts. The employees in this case were charged with allegedly stealing batteries from the S1 and Secretary. Towards the end of the disciplinary hearing, the complainant or initiator applied to admit into evidence a tape recording on which an employee had confessed and implicated the applicants.

Although they were objections by the union representative, the presiding officer admitted the tape recording and the applicants were dismissed. At the arbitration hearing, the only witnesses the employer called was the presiding officer of the disciplinary enquiry, the initiator, and the investigator. The tape recording had gone missing.


On the other hand, the dismissed employees had all testified and denied their guilt. The Commissioner found that the question to be decided was whether it had been in the interests of justice to admit the recording as evidence in the disciplinary enquiry, and whether the accused had been prejudiced by the inability to cross-examine the alleged informer.


It was found further that although the disciplinary hearing had been in all other respects fair, the presiding officer should not, in the absence of some convincing explanation for why the informer could not be called, have admitted the tape recording. The presiding officer conceded that her finding was based primarily on the tape recording, and therefore the dismissal was also without a fair reason.


Admissibility of the tape recording was denied and the dismissed employees were reinstated.


Section 3 of the Evidence Act makes the following provision:

  • Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless:

  • each party against whom the evidence is to be adduced agrees to the admission of that evidence at such proceedings;

  • the person upon whose credibility the probate of value of such evidence depends, himself testifies at such proceedings; or

 

The court, having regard to:

  • The nature of the proceedings;

  • the nature of the evidence;

  • the purpose for which the evidence is tendered;

  • the probative value of the evidence;

  • the reason why the evidence is not given by the person upon whose credibility the probative of the value of such evidence depends

  • any prejudice to a party which the admission of such evidence might entail; and

  • any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.

 

Therefore the admissibility of hearsay evidence depends on a number of factors - and decisions on the admissibility or relevance of such evidence, or a decision to disallow such evidence, should not be taken lightly.

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