ADMISSIBILITY OF EVIDENCE IN ARBITRATIONS AND DISCIPLINARY HEARINGS

1. ADMISSIBILITY OF EVIDENCE IN ARBITRATIONS AND DISCIPLINARY HEARINGS

2. What is evidence? Information or things placed before a hearing to prove or disprove an issue in dispute.

3. Includes: • Inferences which can be drawn from the information. • Oral statements from witnesses • Formal Admissions • Documentary evidence • Real evidence

4. 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

5. 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

6. 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.

7. 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

8. 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.

9. 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.

10. 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.

11. Photos, videosand 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

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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 self- corroboration because the doctor wrote the certificate.

20. 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.

21. 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

22. Ismail v NationwideAirlines • 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.

23. 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.

24. 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.

25. 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.

26. 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

27. 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

28. Therefore the only admissibility requirement is whether the evidence is relevant and the issue of a certificate will not apply

29. 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.

30. S v Edley 1970 2 SA 223 (N) • An ordinary witness (a non-expert witness) may be permitted to give opinion evidencebased 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.

31. 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

32. 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).

33. 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.

34. 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.

35. 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’

36. 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.

37. 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

38. 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.

39. 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.

40. 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.

41. 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

42. 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.

43. 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.

44. 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

45. 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

46. 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)].

47. 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].

48. 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.

49. 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.

50. 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