Damned if you Do and Damned if you Don’t – An Employer’s Conundrum

Employers often find themselves in an arduous position when disciplining employees for misconduct which either directly involved or affected their customers. Although any disciplinary process usually involves an investigation and analysis of evidence, it is highly unusual for employers to involve their customers in such disciplinary proceedings.

Written By of Cowan-Harper-Madikizela Attorneys

The matter is of course aggravated should the employee subsequently be dismissed as the notion of requiring a customer to spend the day at the CCMA, in order to vindicate the employer’s decision to dismiss the employee, is often not only impracticable but severely detrimental to the employer’s business and their ongoing commercial relationship with the customer. The CCMA is alive to this tension and has noted that “… an employer is understandably loath to call its customers to give evidence in hearings as they might be severely harangued in the witness-box, and end up promising never to do business with the employer again, lest there be a repeat performance”.

Should the employer muster the courage to involve a customer in such a process it often happens that the customer is dismissive of the matter and simply not prepared to get involved. Unfortunately, aside from issuing a subpoena in order to compel such a customer to attend the hearing, the employer is largely without remedy. As a result, employers often rely on written statements or e-mails received from customers in order to support their case against the offending employee. Such evidence unfortunately constitutes hearsay evidence which, if allowed by the commissioner, would place the employee at a considerable disadvantage in the proceedings.

The Law of Evidence Amendment Act (“ the LEAA”) defines hearsay evidence as “evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence”. In accordance with the provisions of the LEAA hearsay evidence is only admissible in specific circumstances or when the admission of such evidence is in the interests of justice. Determining whether hearsay evidence should be admitted depends upon, inter alia, the reason why the evidence is not given by the person and the possible prejudice to the parties. In this regard, commissioners should be reminded that section 138(1) of the Labour Relations Act requires arbitrations to be conducted with the minimum amount of legal formalities which implies that the provisions of the LEAA should, in most instances, not be applied rigidly.

The difficulty with the admission of hearsay evidence is that it is perceived to be prejudicial to an employee as it cannot be tested through cross-examination. As such, uncorroborated hearsay evidence inherently carries less weight or probative value and will in most instance be trumped by the oral evidence of the offending employee, if such oral evidence is found to be credible.

Nevertheless hearsay evidence is not entirely without value. In the recent case of Department of Home Affairs v Nesengani (JR281/17) (14 August 2019) the Labour Court confirmed that the reliability of hearsay evidence will be determinative of the weight that it is given. In its Judgment, the Labour Court also referred to the case of Minister of Police v M 2017(38) ILJ 402 (LC) where the Court held that a commissioner’s failure to give hearsay evidence sufficient weight may constitute a material error or irregularity. Commissioners must accordingly evaluate the evidence critically in order to ensure that the appropriate weight is attributed thereto as a failure to do so could amount to a reviewable irregularity if it distorts the outcome of the arbitration award.

In view of the difficulties  associated with the use of hearsay evidence, and because offending employees should not be allowed to go unpunished solely because employers are unable to secure the oral evidence of their customers, employers should consider requesting their customers to depose to affidavits meticulously detailing both the events which took place and the reasons why they are unable to testify in person. This would bolster the probative value of the evidence and circumvent the strict requirements contained in the provisions of the LEAA.

It is however notable that although affidavits do not constitute hearsay evidence they nevertheless still carry less weight that oral evidence which has been duly subjected to cross-examination. Accordingly, although impractical, the best evidence rule still finds application and requires employers to obtain the oral testimony of their customers in circumstances where they are able to do so. Disappointingly, the impact of this on an employer’s commercial relationship with their customers appears to constitute no more than collateral damage in the pursuit of justice.

Tanya Mulligan

Tanya Mulligan
Executive in Employment

James Horn

James Horn
Partner in Employment

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