Hearsay Evidence

By its very nature, hearsay evidence is unreliable. If, for example, the employer’s representative is trying to prove that an employee removed something from a shelf or an office, direct evidence would include the evidence of the employee himself or herself (if he or she admits it) or the evidence of someone who saw the employee remove the item. Naturally, things are not always that easy: the employer’s representative may present evidence from a colleague who heard another say something about seeing the employee concerned removing something from the office. Not reliable evidence by any stretch of the imagination. Relying on hearsay evidence is always perilous, even in the case of disciplinary hearings, even though the formal rules of evidence do not apply with full force to these proceedings. When it comes to arbitration, however, both the parties and the arbitrator should avoid hearsay evidence.

A new Labour Court decision focuses attention on the issue of hearsay evidence. In Swiss South Africa (Pty) Ltd v Louw NO & others (2005) 14 LC 2.2.1 the employee was one of those people checking in passengers at the airport and part of the employee’s duties was to ensure that passengers’ luggage was within the weight limits. A passenger claimed that the employee had solicited a bribe — in exchange for her waiving the official payment. To avoid any unpleasantness, the passenger paid up the US $120. The employee was charged after she acknowledged that she was the one who had dealt with the passengers concerned. The employee was dismissed on charges of extortion or bribery or dishonesty. The employee’s version was that she knew of the employer’s policy in this regard (the policy disallowed check-in staff from accepting tips) because of the difficulties there would be to separate tips from bribes. She intended to declare the tip to her supervisor but had simply forgotten to do so. But in the disciplinary hearing the employee was not given any opportunity to cross-examine the employer’s representative — the employer’s representative was both representative and witness at the same time.

The arbitrator had ordered the payment of ten months’ compensation after finding the dismissal both substantively and procedurally unfair. One of the issues that arose in the Labour Court was whether the arbitrator should have permitted the hearsay evidence (remember that the passenger, the only party who had direct evidence implicating the employee, was now in Singapore).

Taking into account the provisions of the Law of Evidence Amendment Act 45 of 1998, the Labour Court concluded that, depending on the circumstances of the case, hearsay evidence may be admitted by an arbitrator in CCMA arbitration proceedings. Section 138 of the Labour Relations Act also provides that a commissioner must deal with the substantive merits of the case with the minimum of legal formalities.

The Labour Court traces the route the evidence had taken: a passenger on Singapore Airlines lodged a complaint with a staff member in Singapore. The complaint was given to a Mr Lee who then sent an e-mail to a Mr Murray. Mr Murray turned out to be a co-worker of the employee charged. The arbitrator pointed out that there was no documents or affidavits from the passenger in which the passenger directly complained of the employee’s actions. Neither Singapore Airlines nor the passenger confirmed the authenticity of the complaint and that it had in fact been received as a formal complaint. Other issues considered by the Labour Court included the purpose for which the evidence is tendered (to prove the guilt of the employee) and the probative value of the evidence (in other words, what weight should be attached to the evidence).

In the end, the Labour Court concluded that the admission of hearsay evidence in this case would not have been in the interests of justice. The arbitrator had not been wrong in rejecting the hearsay evidence.