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

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
S v Ramgobin evidence
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
The
testimony of a witness in a disciplinary
proceedings

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
Bs statement depends on the credibility of B,
not A. A cannot be cross-examined as to the
truth of Bs 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 doctors 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 employees 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
employees
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
employees 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 employers sole witness and
presented extensive documentary evidence.
The LC held that the arbitrator had improperly relied
on the investigators 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 LCs ruling in effect required the arbitrator to have
heard the evidence of all the persons involved in the
collating of the stock report.
Its 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 employees rights may be limited in terms of the
employers 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 employees 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

employees 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 employers 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 employees 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.