Introduction
The law of evidence in South African labour law applies many of the general principles of evidence, but with important adaptations to reflect the less formal, more accessible, and fairness-based nature of proceedings before bodies like the Commission for Conciliation, Mediation and Arbitration (CCMA) and Bargaining Councils, as well as the Labour Court.
In the workplace, disputes sometimes arise – between employer and employee, or between co-workers. When such disputes escalate to a formal process like a disciplinary hearing, the CCMA, a bargaining council, or even the Labour Court, decisions must be made based on facts. But how are these facts established? That’s where the law of evidence steps in, guiding us on what information can be presented and how it should be handled.
Labour law does not operate like the High Court or Magistrate’s Court. The rules of evidence are applied more flexibly – but fairness remains the golden thread.
The Setting: A Less Formal Forum
Unlike in civil or criminal courts, proceedings at the CCMA or bargaining councils are deliberately less formal. There are no robes, no elaborate procedures, and often no lawyers (unless permitted). Commissioners – those who preside over these matters – are not judges, but they carry a serious responsibility: to decide fairly, based on the facts.
Internal disciplinary hearings, the CCMA and Bargaining Councils are not courts of law. They are not bound by the strict rules of evidence but must still apply principles of natural justice and procedural fairness. Commissioners may admit evidence that would be inadmissible in a court, provided it is relevant and fair to do so.
To do this, they rely on evidence, but they are not strictly bound by formal rules like a judge would be. The Labour Relations Act and CCMA Rules allow commissioners to be more flexible, provided that the process remains fair to both parties.
Relevance Is the First Test
Imagine a workplace dispute about misconduct – say, an employee was dismissed for insubordination. The first thing the commissioner wants to know is: what actually happened?
Only relevant evidence – facts that help prove or disprove the allegations – will matter. A long history of unrelated complaints? Not helpful. But a written warning about the same behaviour a month earlier? Very relevant.
Therefore:
- Relevance is key. The evidence must help prove or disprove a fact in dispute.
- Hearsay evidence (e.g. a written complaint from an absent witness) can be admitted if it is:
- Relevant,
- Reliable,
- And if admitting it does not render the proceedings unfair (per Law of Evidence Amendment Act 45 of 1988).
- Illegally obtained evidence (e.g. secret recordings) may still be admitted if doing so is not unfair and it is in the interests of justice (aligned with S v Tandwa and section 35 of the Constitution).
Witnesses and Testimony
Oral evidence – what people say under oath or affirmation – is the heart of many labour disputes. Employers bring in supervisors and HR staff; employees tell their side of the story; sometimes co-workers are called to support one version or another.
Credibility matters. Commissioners don’t just listen to what is said – they pay close attention to how it is said, whether the story stays consistent, and whether it lines up with other evidence.
Documents, Recordings, and Other Evidence
Besides verbal testimony, documents play a huge role. Employment contracts, warning letters, attendance registers, emails, and payslips often form the backbone of a case.
Increasingly, digital evidence – like WhatsApp messages, CCTV footage, or voice recordings – is also brought in. Even if such evidence was gathered informally (say, without telling the other party), it may still be allowed – if it is relevant and admitting it would not make the process unfair
Hearsay: A Tricky Area
Sometimes, a manager says: “I was told by someone else that the employee swore at the client.” That is hearsay – a statement made outside the hearing, offered as truth.
In formal courtrooms, hearsay is generally not allowed. But at the CCMA or in a disciplinary hearing, things are different. If there is a good reason the original speaker is not available (say, they have left the company), and the evidence seems reliable, a commissioner may admit it – if it would be fair to do so.
Still, direct evidence – having the actual witness testify – is always better.
Burden and Standard of Proof
Here’s an important rule: in cases of dismissal, the employer bears the burden of proving the dismissal was fair – both procedurally and substantively.
The standard of proof is not as high as in criminal law. The commissioner is not looking for proof “beyond reasonable doubt.” Instead, the question is: is it more likely than not that this version is true? That is the balance of probabilities standard.
Privileged and Excluded Evidence
Just like in other courts, certain types of evidence may not be used. Conversations between an employee and their lawyer, for example, are privileged. And if evidence was obtained in a way that violates someone’s rights or dignity – say, by secretly recording them in a private space – it may be excluded if admitting it would make the proceedings unfair.
Lessons from Case Law
Over the years, South African courts have helped shape how evidence is used in labour disputes. A landmark case, Sidumo v Rustenburg Platinum Mines (2007), reminded us that commissioners must use their discretion reasonably – but not mechanically apply strict legal rules. CCMA commissioners have a wide discretion, provided decisions are reasonable.
In the case of NUMSA obo Khumalo v Ezulwini Mining Company (2022) it was confirmed that the CCMA must ensure that even hearsay evidence is tested for reliability and fairness.
In another case, FAWU v CCMA and Others (2008), it was emphasised that while the CCMA is not a court, it must still apply its mind carefully to the evidence before it.
The Takeaway: Fairness Above All
At its heart, the use of evidence in labour law is all about balancing flexibility with fairness. The goal is not legal technicality – it is to uncover the truth and reach a just outcome. Whether you are an employer or employee, your case will be strongest if your evidence is clear, relevant, and reliable.
Source:
- Labour Relations Act 66 of 1995 (LRA)
- Constitution of the Republic of South Africa, 1996
- CCMA Rules and Codes of Good Practice (e.g. Code on Dismissal)
- Common law principles of evidence (as adapted to the labour context)
