Many employers had to face the question of whether or not to make certain information available to an employee before a hearing is done or even during a hearing that is being conducted. Information can be confidential, privileged, and sensitive. It is a reasonable concern for the employer to want to know if the employee has the right to request information and whether it would cause problems, should the information be withheld.
What information must be given to an employee in regards to a disciplinary hearing?
CCMA Rule 29(1) is helpful in this respect as it gives us the guiding principle. The rule states that “…either party may request the other party to disclose any documents or material relevant to the dispute.”, so the guiding principle is information that is relevant to the dispute. The court also gave clarity as in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 the court found that an investigation report that was presented to the employer, which led the employer to convene the disciplinary hearing, was irrelevant. The employer, therefore, could rightly refuse to disclose it as the report was not used as evidence directly in the hearing and would not be used in a subsequent arbitration, but witnesses testimony were relied on to prove the case of the employer. The report had been deemed privileged, as it was protected by attorney and client privilege.
So to answer the question of what information must be given, we must consider the following:
- If the information being withheld is relevant to the case to the degree that it will be used directly as evidence, if yes, then the employee has the right to the information. In other words, does the employer rely on the information for the hearing? If yes, it needs to be disclosed;
- Suppose an employee is not able to prepare a proper defence due to the non-disclosure, then it may be a procedural fairness concern for the employer as the primary guiding rule is that the employee must adequately prepare for a hearing;
- In the case cited above, the court states that most of the rules of discovery and the formalities associated therewith simply do not apply in arbitration proceedings and, by extension, disciplinary hearings.[1]
What information can be refused to be given?
To answer this question, Section 16 of the Labour Relations Act 66 of 1995 (LRA), as amended, will be a helpful guide. In section 16(5) it gives information that may be refused to be disclosed, even to a Union having majority representation, namely:
- That is legally privileged;
- That the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court;
- That is confidential and, if disclosed, may cause substantial harm to an employee or the employer;
- That it is private personal information relating to an employee unless that employee consents to disclose that information.
Therefore, it is very reasonable for an employer to refuse to give proprietary information (trade secrets, secret formulas, secrete methods or processes) to an employee, even if the employee works with certain types of this information to do his work.
Can POPIA provisions affect disclosure of information in hearings?
POPIA has only entered the business sector with vigour in July 2021. The following view is not to be taken as formal advice from SEESA, but merely as a point of interest for possible future law development.
Firstly, an employee is allowed to collect a copy of documentary evidence that comes into question. For the employee to collect a copy, Section 13 of POPIA must be considered as Section 13(1) states the collector must have a specific purpose for collecting information. It is unlikely for an employee to show an intent to collect the information post-hearing. In arbitration, the evidence used in the hearing must be presented by the employer, so the employee cannot claim if his purpose is to collect the information for arbitration preparation.
Secondly, by the employee retaining the information Section 14 of POPIA comes into effect, which restricts retention of information until the purpose has been fulfilled. As the employee has no purpose in collecting the information in the first place, the employee does not have a purpose of retaining said information, and so an employer may refuse.
By applying the example above to a practical hearing, we can see where a client sent a complaint to the employer, and the employer wishes to use this email as evidence. The email contains personal information (email address, telephone number, the person’s subjective opinion or views etc.) and therefore, the collection and retention provisions mentioned above is applicable. Should the client who sent the email consent to the information being given to the employee, then the employer does not have an acceptable reason to refuse.
Conclusion:
If denied information to prepare for a hearing, employees may very well have a strong case to show procedural unfairness. Still, the employee carries the burden to prove that the employer acted in a prejudicial way towards the employee. A well-trained chairperson can guide this process and has the right to recommend information to be given to the employee if the employee makes a sufficient claim during the hearing that they could not have reasonably prepared, without access to the information, and that disclosing the information in the hearing only would not be sufficient..
For any further information regarding this matter, contact your nearest SEESA office, alternatively, leave your contact details on our website.
About the author:
Andries Lerm started his career at SEESA in 2012 and is currently a Senior Legal Advisor at SEESA’s Cape Town Office. He obtained his Honours Degree in Employment Relations (Industrial Relations) from the North-West University.
Sources:
Case Law:
- South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23
Legislation:
- Protection of Personal Information Act 4 of 2013
- Labour Relations Act 66 of 1995.
[1] In support of this view, the case of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others (JR782/05) [2006] ZALC 44, will lend support.