Transcript Document

ADMISSIBILITY OF EVIDENCE
IN ARBITRATIONS AND
DISCIPLINARY HEARINGS
What is evidence?
Information or things placed before a hearing to
prove or disprove an issue in dispute.
Includes:
• Inferences which can be drawn from the
information.
• Oral statements from witnesses
• Formal Admissions
• Documentary evidence
• Real evidence
Admissibility of evidence in
arbitrations
In terms of s138 of the LRA, arbitrators are
obliged to deal with the ‘substantial merits of
the dispute’ [ascertain the full factual picture]
quickly, fairly, in a manner he/she deem fits and
with the minimum of legal formalities
Le Monde Luggage CC t/a Pakwells Petje v
Dunn & others (2007) 10 BLLLR 909 (LAC); 16
LAC 1.11.31; The Foschini Group v Maidi &
Others (2009) 18 LAC 1.25.2
They are thus not bound by strict rules of
evidence
Generally, arbitrators should admit all material
that is relevant [ie has probative value], unless
the specific type of evidence requires a stricter
approach based on fairness and public policy.
Evidence is relevant [has probative value] if it:
• is material to the issues and to facts in dispute
• appears reliable (credible)
• will assist in deciding the case: it has the ability to shine light
on what actually happened when there is a dispute of fact
• does not involve lengthy investigations into collateral issues
that begs the very issue that the arbitrator has to decide
• does not prejudice a fair and speedy resolution of the dispute
• relates to the credibility of a witness: whether he has a reason
to lie, his powers of perception and memory, the consistency,
inherent probabilities and accuracy of his version
Internal disciplinary hearings
Avril Elizabeth Home for the Mentally Handicapped v CCMA &
Others (2006) 27 ILJ 1644 (LC)
• There is no place for formal procedures that incorporate all
the elements of a criminal trial, including the leading of
witnesses, technical and complex charge sheets, requests for
particulars, the application of the rules of evidence, legal
argument and the like.
• When the Code refers to an opportunity that must be given by
the employer to the employee to state a case in response to
any allegations… it means no more than that there should be
dialogue and an opportunity for reflection before any decision
is taken to dismiss. It need not be a formal inquiry.
Admissibility and weight
Admissibility
• Refers to whether particular evidence may be introduced at
the hearing and/or be taken into account by the arbitrator.
Weight
• The fact that evidence is admitted does not mean that it is
automatically true or even particularly persuasive.
• It is still open to the arbitrator to find, when assessing all the
evidence presented, that certain evidence which he admitted
is improbable and is to be rejected or that certain evidence,
while constituting proof, does not carry much weight.
Documentary evidence
Where the contents of a document are in
dispute, it should be introduced into evidence
through a witness who was the author,
signatory, producer or had some other
connection to the document sufficient to
confirm the correctness of the contents;
otherwise it hearsay evidence.
Photos, videos and surveillance
camera evidence
S v Ramgobin
Documentary evidence, so if the content is in
dispute, to be admissible, it must be introduced
and authenticated by the person who can testify
that they are true representations of the objects
and persons which they purport to represent
and that it was not altered
Real Evidence
• Physical evidence e.g. the weapon used in an assault;
the visible injuries of the complainant
• Evidence created by a device with no human
intervention [eg a computer printout from MTN of
the cell phone calls of a client; the results of a
breathalyzer [in good working order] or a blood test
To be admissible, real evidence need only be relevant.
Practically, it should be introduced and explained by a
witness.
Evidence procured by the arbitrator
Since an arbitrator is obliged to deal with the substantial merits
of a dispute [s138 above], he/she may question or call or any
witness to ascertain any relevant fact or information beyond
what the parties decide to present.
A lawyer was opposing the introduction of certain documentary
evidence, which appeared to be relevant, but technically
inadmissible in law. The judge asked: “Am I not to hear the
truth?”, to which the lawyer replied: “No, your Lordship is to
hear the evidence”.
Unlike the judge, the arbitrator is not a passive arbiter
Admitting ‘evidence’ not introduced at
the arbitration
Portnet v Finnemore & others (1999) 2 BLLLR 151 (LC)
• The arbitrator committed a gross irregularity when she took
into account alleged inconsistencies between the evidence
given by certain witnesses at the disciplinary hearing and that
given at the arbitration in the absence of these
inconsistencies being put to the witnesses.
• The audi alteram partem rule required that parties be given
the opportunity to be heard in respect of every piece of
evidence that an arbitrator intended to have regard to. The
applicant was denied such an opportunity.
Evidence in former proceedings
The testimony of a witness in a disciplinary
hearing is admissible at the arbitration [can be
added to the evidence led at the arbitration]
without the witness being called if the
proceedings are between the same parties, the
issues are substantially the same, the witness
cannot be called and the opposing party had a
full opportunity to cross-examine the witness.
Hearsay evidence
Evidence, whether oral or in writing, the
probative value of which depends upon the
credibility of any person other than the person
giving such evidence
Eg: Witness A tells the hearing what B, who is not
called as a witness, told him he allegedly saw, heard
and experienced. The veracity of B’s statement
depends on the credibility of B, not A. A cannot be
cross-examined as to the truth of B’s statement.
Affidavits, statements, medical certificates
/reports etc handed up in place of calling the
authors or deponents of such documents as
witnesses constitute written hearsay evidence.
Le Monde Luggage CC t/a Pakwells Petje v Dunn & others (2007) 10 BLLLR
909 (LAC); 16 LAC 1.11.31; The Foschini Group v Maidi & Others (2009) 18
LAC 1.25.2; CWU v SA Post Office (2009) 30 ILJ 430 (CCCMA)
• Based on s138, arbitrators are not bound by the strict admissibility rules
applied in the civil and criminal courts to hearsay evidence.
• If the hearsay evidence is relevant and the originator cannot be secured as
a witness, it should be admitted. The only issue should be what weight, if
any, should be attached to the evidence.
• If the hearsay evidence is corroborated by other evidence and/or fits into
the overall jigsaw puzzle of ‘hard facts’ that has been presented it may
assume significant weight and be persuasive.
Medical certificates and reports
Where an employee, as the recipient of the certificate,
is able to testify to the correctness of its contents, the
certificate/report is not hearsay evidence.
However, where the employee wishes to rely on the disputed
contents of a medical certificate of which he can have no
specialized knowledge, the contents will be hearsay evidence in
the absence of the doctor’s testimony.
Note: the testimony of an employee intended to corroborate the
contents of a hearsay certificate will not constitute selfcorroboration because the doctor wrote the certificate.
Le Monde Luggage CC t/a Pakwells Petje v Dunn &
others (2007) 10 BLLLR 909 (LAC)
The commissioner had not committed an irregularity
when he took into account a medical report to confirm
an employee’s testimony without having heard
evidence from the medical practitioner.
Arbitrators are not bound by strict rules of evidence
and the report had merely being used to confirm the employee’s
version which had further been corroborated by an independent
witness.
Objective & subjective aspects of hearsay
evidence
Sigasa v Kemklean Hygiene Systems (CCMA)
The arbitrator admitted the hearsay complaint of a motorist
against the employee for bad driving to show that the employee
was on an unauthorized route but disallowed the evidence
where the employer sought to use it as evidence of the
employee’s bad driving.
He thus distinguished between the objectively ascertainable
aspects and the subjective aspects of the evidence. The former
do not rely on perception or opinion and can be given
considerable weight, whilst the latter, in the absence of direct
evidence or corroboration, must be given little weight or
rejected as unreliable
Ismail v Nationwide Airlines
• The employee was dismissed for allegedly making
improper remarks to a passenger. The employer
relied on an affidavit from the passenger. The
arbitrator admitted the affidavit into evidence
because the employer could not bring the passenger
as a witness.
• However, the arbitrator did not attach much weight
to the contents of the affidavit because they were
not corroborated by other evidence and subjective in
nature. It was the kind of evidence that needed to be
tested.
The Foschini Group v Maidi & Others (2009) 18 LAC
1.25.2
• The employees were charged with stock loss. The investigator
was the employer’s sole witness and presented extensive
documentary evidence.
• The LC held that the arbitrator had improperly relied on the
investigator’s evidence because, as the investigator was not
personally present during the stock take and did not
personally generate the stock loss documents, his evidence
and the documents he relied on were strictly hearsay.
The LAC agreed the evidence was hearsay but held that:
• it was permissible for the arbitrator to have relied on it
provided he was satisfied that the evidence was reliable.
• s 138 of the LRA requires arbitrators to determine disputes
with the minimum of legal formalities
• the LC’s ruling in effect required the arbitrator to have heard
the evidence of all the persons involved in the collating of the
stock report.
It’s acceptable if the manager [or his investigator] is called to
testify on behalf of staff members under his supervision and
control.
S15: the ECT Act: Electronic business records
The computer printouts of business records made in
the ordinary course of business:
• are admissible against any person in civil, criminal,
disciplinary inquiry proceedings under any law and
administrative proceedings [arbitrations] without
the testimony of the one who made the entry]; and
• constitute rebuttable proof of the facts contained in
them
if accompanied by a certificate from a manager stating
that the contents thereof are correct and accurate.
Thus: Thus the ECT Act creates an exception to
the hearsay rule for electronic business records
and places an evidentiary burden on the person
disputing the contents to prove the contents are
not correct and accurate.
Business records: eg business transactions, financial
records, leave and payroll records, clock card records,
productions records etc
S v Ndiki (2007) 2 ALL SA 187 (Ck); Ndlovu v Minister
of Correctional Services (2006) 4 ALL SA 165 (W)
Computer printouts of information where computers
operated without human intervention must be treated
as real evidence; not documentary evidence because
the information was not created by a human to create
what was obviously a human statement
• Eg: the cellular telephone record of an MTN user
Therefore the only admissibility requirement is
whether the evidence is relevant and the issue
of a certificate will not apply
Evidence of intoxication
Exactics-Pet (Pty) Ltd v Patelia NO & Others
(2006) 6 BLLLR 5551 (LC)
It is incorrect to hold that:
• the results of a breathalyzer test can only be
admitted under strict conditions appropriate in a
criminal trial.
• only technical or medial evidence of intoxication [eg
the results of a breathalyzer or blood tests] is
admissible and reliable.
S v Edley 1970 2 SA 223 (N)
• An ordinary witness (a non-expert witness) may be
permitted to give opinion evidence based on general
human experience and knowledge.
• The more gross and manifest the physical
manifestations of intoxication noted by credible and
reliable lay witnesses are, the more readily technical
evidence be dispensed with.
• The more equivocal [uncertain] the physical
manifestations or indications of intoxications may be,
the greater would be the need for technical
evidence.
Where a witness testifies that the accused
employee had slurred speech, smelt of alcohol,
had an unsteady walk, red eyes etc, and the
employee cannot satisfactorily explain his
behavior, the employer has offered a more
probably version
Opinion evidence
A lay witness (a non-expert witness) may be
permitted to express an opinion based on
general human experience and knowledge.
These include whether a person was
intoxicated, whether a vehicle was going fast or
slow, the hand writing of someone they know
and the emotional state of a person (eg whether
a person was angry or distressed).
IMPROPERLY OBTAINED EVIDENCE
Section 6 of the Regulation of Interception of
Communications and Provisions of Communications
Related Information Act 2002 (‘RICA’)
An employer may intercept and monitor its
employees’ communications made via
telecommunication systems provided by the employer
such as work phones, cell phones, computers, email,
internet etc.
Evidence obtained from such interception and monitoring is
admissible if:
• the employees were advised beforehand in a policy or other
notice that the employer may intercept and monitor such
communications when appropriate.
• the interception or monitoring was authorised by the head of
the company or head of department.
• the employer had good reason to intercept or monitor the
communications: there were reasonable grounds to suspect
an offence or improper use of the telecommunications
system.
• less drastic methods of detection were not available at the
time.
If the employer obtains evidence in contravention of s6
[obtains the evidence illegally], is the evidence admissible?
Goosen v Caroline Frozen Yoghurt Parlour (Pty) Ltd & Another
(1995) 16 ILJ 396 (IC): admissibility in labour law turns
on relevance; not on how the evidence was obtained
Sugren and Standard Bank of SA (2002) 23 ILJ 1319 (CCMA):
Telephone and email facilities provided by the employer
are ‘legitimate areas of interest to the employer where it
suspects that the employee is guilty of misconduct’
Suggestion: Based on the civil law test, in labour law:
Improperly obtained evidence should not be admitted
if its admission will render the trial unfair [lead to
procedural unfairness] and/or where the extent of the
contravention/violation was extensive, the employer
acted knowingly and deliberately [eg it went ahead
despite being warned that it was acting unlawfully] or
the employer had alternative lawful means to obtain
the evidence.
Other searches and monitoring
If s 36(1)(a) to (e) of the Constitution is applied:
An employee’s rights may be limited in terms of the
employer’s common law right to protect its property
and business interests [the law of general application],
but the limitation must be reasonable and justifiable
after considering the employee’s right to dignity and
privacy, the importance, purpose and extent of the
limitation and whether less restrictive means exist to
achieve the purpose
Evidence obtained from searches of an
employee’s workstation or body searches is
admissible if the employer has a search policy
and had good reason to search in that there
were reasonable grounds to suspect an offence
and, in the case of body searches, it was
conducted decently and other less drastic
methods of detection were not available.
An employer is entitled to monitor its premises
and the conduct of employees in operational
areas (excluding change-rooms and toilets)
through video and other camera surveillance if
it has a good reason for doing so. Evidence
obtained in these circumstances is admissible.
Facebook
Workers have the right to freedom of expression and
privacy, but these rights are not absolute and may be
limited by the employer’s right to protect its name and
appropriate respect amongst fellow employees.
There can be no legitimate expectation of privacy on
facebook: whatever is said on facebook is open to
being spread or repeated to others.
Entrapment
Entrapment takes place when the employer
engages ‘agents’ [‘trappers’] to conclude
improper illicit ‘deals’ with employees
suspected of misconduct.
• Eg: where an employer sends an agent to an
employee offering some gratification to steal
company property to test whether that
employee is trustworthy or not
Cape Town City Council v SAMWU & others (2000) 21
ILJ 2409 (LC); Caji and Africa Personnel Services (Pty) Ltd (2005)
26 ILJ 150 (CCCMA); NUMSA obo Nqukwe & others v Lowveld
Implements (2003) 8 BALR 909 (CCMA)
Entrapment is permissible but the evidence obtained in a trap
[what the employee did & said] is improperly obtained if:
• There was no pre-existing suspicion about the employee.
• The conduct of the agents went beyond providing an
opportunity to commit an offence.
Going ‘beyond providing an opportunity to
commit an offence’ includes actively
encouraging or unduly inducing the employee to
commit the offence or actually suggesting the
offence to the employee.
The onus rests on the employer to show that
the trapping was fairly conducted.
These cases used the restrictive criminal law standard
[s252A of the CPA] for determining the boundaries of
entrapment
Moreover they conflated the inquiry as to whether the evidence
was improperly obtained with the admissibility inquiry.
As stated earlier on, even in criminal matters, illegally or
improperly obtained evidence is not automatically inadmissible.
It is only inadmissible if the admission of the evidence would
render the trial unfair or be otherwise detrimental to the
administration of justice
Polygraph evidence
Some arbitrators have admitted into evidence
the results of polygraphs tests performed by
‘properly trained examiners’ but only as
corroboratory evidence of other evidence
against the employee [eg Mzimela and United
National Breweries (SA) Pty Ltd (2005) 14 CCMA
8.23.11
The Labour Court held that the results of a
polygraph may be taken into account in
assessing the credibility of a witness and
assessing probabilities [see Truworths Ltd v
CCCMA & Others (2009) 30 ILJ 677 (LC)].
According to some arbitrators it is unfair and
unsafe to admit or attach any credibility to the
results of lie detector tests because their
scientific validity and reliability has not been
accepted by courts or the Health Professions
Council of SA [see Mahlangu v Deltak; Sosibo &
others v Ceramic Tiles; Steen and Wetherleys; Shezi &
others v Amalgamated Pharmaceuticals].
• Comment: polygraph evidence is arguably
irrelevant opinion evidence that will not assist
the arbitrator because it is the job of the
arbitrator to determine whether a witness lied
or was evasive on a particular fact or question;
it thus begs the very questions the arbitrator
must and is qualified to decide.
Informal admissions and confessions
Admissions which have not been formally agreed to,
and may be denied and explained away during the hearing
OK Bazaars v CCMA & others (2000) 21 ILJ 11188 (LC)
• Criminal law standards regarding the admissibility of
confessions and admissions should not be applied in
arbitrations.
• Where an employee confesses to misconduct and the
confession was not made under duress, extraneous evidence
that the misconduct was committed is not necessary.
• Whether an admission was made under
duress is an objective inquiry
• Eg where an employee confesses when given
the choice of facing a disciplinary inquiry or
admitting the misconduct when confronted
will not amount to a confession made under
duress
Privilege
Pillay v Unitrans Sugar (2000) ILJ 1719 (CCCMA)
• The relationship between an employee and
his [union/fellow employee] representative at
disciplinary is privileged, just like the one
between an attorney and client. A
representative is therefore not permitted to
tender evidence in arbitration proceedings to
determine the fairness of an employee’s
dismissal.
The parole evidence rule
• Parties to a written agreement [eg a collective
agreement] are bound by what is written in the
agreement and may not seek to prove, contradict or
change the written terms of the agreement through
oral evidence, unless the agreement itself is unclear
or ambiguous on the matter.
• Extrinsic evidence is only admissible to determine
the validity of a transaction: it may be shown by oral
evidence that a contract is void for fraud, mistake,
illegality, impossibility or lack of consensus.
• Labour law deals with fairness and in appropriate
circumstances, arbitrators may look behind written
contracts to determine the real intention or
relationship between parties.
• This was done in numerous cases where employers
induced employees into signing independent
contractor contracts, when the real relationship was
an employment relationship.
KPMG Chartered Accountants (SA) v Securefin Ltd and
Another 2009 (4) SA 399 (SCA)
• Witnesses should not be asked about the meaning
[interpretation] of a contract [agreement]. The testimony of a
witness regarding the interpretation of an agreement and the
meaning of certain words in an agreement is a waste of time,
irrelevant and inadmissible.
• Interpretation is a matter of law and not fact, and according, a
matter for the arbitrator [after listening to argument from the
representatives] and not for a witness to deal with.