Hearsay evidence is a common problem during disciplinary hearings. Should such evidence be admitted it could result in serious prejudice to the accused, and excluding it could result in the employer or victim suffering. Hearsay evidence occurs when the person who is giving such evidence is not the person who actually witnessed the incident.
A typical example of such evidence is where the person initiating charges submits a written statement from a person who witnessed the offense instead of calling the witness to give oral evidence at the enquiry. One of the common problems employers are faced with is that the actual witness is afraid to give evidence in person for fear of being harmed or intimidated by the accused person.
The following are some of the reasons why hearsay evidence is generally inadmissible:
- The accused is not afforded the opportunity to cross-examine the witness.
- There may be errors in the evidence that cannot be challenged by the accused and cannot be clarified.
- It also may be a fabricated version of events.
If a presiding officer admits such evidence this could render the dismissal of the employee unfair at the CCMA or any other forum.
Hearsay evidence may be admitted but only in exceptional circumstances. The presiding officer needs to decide on the weight and relevance of such evidence and why the actual witnesses could not be present before deciding whether it should be admissible. If the presiding officer just admits it illegally and dismisses the employee it will render the dismissal unfair.
In Swiss South Africa (Pty) Ltd v Louw NO & others.
The employee was employed as a check-in agent for passengers boarding airplanes. There was a complaint received from a customer via email regarding the employee. The employer relied solely on the email as evidence and the employee was subsequently dismissed due to the complaint.
Her dismissal was found to be unfair by the CCMA and she was reinstated. The matter was taken on review and the Labour Court found that the presiding officer failed to apply their mind in deciding whether the evidence was admissible or not. The Court found in favour of the Employer due to the presiding officer’s errors in judging the admissibility of such evidence.
ABOUT THE AUTHOR
Risha Singh is currently a Legal Advisor based at SEESA’s offices in Durban. She completed her articles of clerkship with Legal Aid SA and was admitted as an Attorney in 2012. She joined the SEESA team in June 2015.