Evidence in a disciplinary hearing, at the CCMA or the Labour Court is important.
Evidence is necessary to proof a case. Witnesses are therefore critical and their evidence must be reliable.
Hearsay evidence is not reliable! It is unreliable because it is when someone tells you what someone else said. In other words, it is actually the third account of a story. The reason why this evidence is suspect and sometimes inadmissible, is because you cannot cross-examine the person who actually saw what happened… or at least said they did.
In the case of Shoprite Checkers v Commission for Conciliation Mediation and Arbitration and Others (JR2259/11)  ZALCJHB 36 (13 February 2014) it was shown how careful an employer should be when relying on ‘second hand’ evidence. The facts of this case are as follows:
- A security officer told the area manager that he saw an employee taking money from a supplier. The employee is referred to as ‘A’.
- The area manager started an investigation. Although ‘A’ did not want to co-operate at first, she later made two statements. These implicated another employee, ‘B’.
- ‘A’ also confirmed the information they had on record in the affidavits on video and even did a polygraph test.
- Because of this information, Shoprite gave ‘B’ a notice to attend a disciplinary hearing. This was for charges of misconduct.
- The chairperson found ‘B’ guilty and summarily dismissed her.
- The only witness who gave evidence on behalf of the employer in the disciplinary proceedings was the area manager. With his evidence, the employer relied on the statements made by ‘A’ to secure guilt against ‘B’.
- ‘B’ challenged at arbitration. The company gave the same evidence. They did not call either the security officer nor ‘A’ as witnesses. They did not have a reason why they did not call the security guard to give evidence. When it came to ‘A’, she just did not want to get involved in the arbitration proceedings.
- In her first affidavit, ‘A’ said she was in collusion with ‘B’. In this scheme, they receive deliveries of quantities less than what was on the order. The driver’s assistant would keep some of the stock. Then sell the stock and share the profits between her, ‘B’ and the driver’s assistant of the suppliers.
- As regards the evidence led at the arbitration proceedings, the Commissioner held that the evidence led on behalf of the employer constituted hearsay evidence. He said there was no evidence why they did not call the security officer as a witness. And they did not have a reasonable explanation why they did not take steps to secure ‘A’s evidence at the arbitration proceedings.
- The Commissioner said they had to reject the evidence of the area.
- They could not find ‘B’ guilty based on the video recording of ‘A’s confession. It would mean that ‘B’ was guilty on evidence she could not challenge in cross-examination.
Because they did not have direct evidence against ‘B’ for the misconduct, the Labour Court said her dismissal was substantively unfair.
What can be learnt from this case?
If an employer wants to use hearsay evidence in a case against an employee, the employer must have a good explanation and reasonable justification why the witness is not there. If the employee denies guilt, the employer also needs to provide any evidence to corroborate the hearsay evidence.