Minimal legal formalities
When a labour dispute progresses to arbitration under the auspices of the CCMA, the arbitration is in some sense an extension of the internal disciplinary proceedings, although conducted as a hearing de novo.
It therefore makes sense that the more aligned the internal disciplinary proceedings are with arbitration proceedings, the better the prognosis of a favourable outcome for the employer.
Section 138 of the Labour Relations Act (LRA) provides that the arbitrator in arbitration proceedings should deal with the substantial merits of the dispute (incorporating dealing with evidence) in a way he/she considers appropriate, but to do so quickly, fairly and with a minimum of legal formalities.
Similarly, this should be the approach to be followed by presiding officers in internal disciplinary proceedings. In many instances relevant case law considered it prudent to relax, in labour matters specifically, the more stringent rules of evidence generally associated with civil and criminal proceedings.
Consider the totality of relevant evidence.
For evidence to be relevant, it has to have probative value (the ability to substantiate what is alleged) and as such should generally be admitted, unless a specific type of evidence requires a stricter approach, based on fairness and public policy.
Distinguish between the credibility and reliability of evidence.
To be credible, the evidence provided has to be adduced honestly and genuinely be perceived as fact.
To be reliable, the evidence should be devoid of circumstantial restrictions from an observational perspective.
In practice, the testimony of a particular witness may for instance be credible, because the witness testified about something he/she personally experienced and perceived to be factual, but such evidence may still be unreliable due to impaired vision occasioned by not wearing glasses, bad weather, darkness, loss of memory, etc.
Obviously, when evidence is not credible it is unreliable ipso facto.
Depending on the qualitative evaluation of the credibility and reliability of evidence by the presiding officer, due and proportional weight needs to be allocated to the evidence concerned.
Always insist on being provided with the best evidence.
Wherever possible, demand that the original of a document be provided as evidence, with proof of authenticity.
Where a statement of someone is presented, albeit a sworn or affirmatory statement, such evidence will at best be hearsay evidence, unless supported by the testimony of the deponent of the statement, being admitted by the other party or corroborated by other tested evidence.
Soliciting evidence by making use of the inquisitorial role adopted by the presiding officer.
Presiding officers in disciplinary proceedings are at liberty to procure evidence relevant to the matter at hand, beyond what the parties elected to submit.
This liberty is derived from the duty on the presiding officer to deal with the substantial merits of the matter and hence the totality of relevant information.
Where the presiding officer detects a glaring gap in relevant information, almost like a missing piece of a puzzle, he/she may call upon the party responsible for the missing piece of evidence to provide it, failing which, an appropriate inference may be drawn from such failure.
Soliciting evidence in this way should however be distinguished from the situation where a presiding officer is providing evidence directly from the chair and out of his/her own volition, which is not appropriate.
Taking “judicial notice” of some relevant factor
Although evidence has to equal facts, not all alleged facts have to be supported by evidence to be given credence.
Some facts, relevant to the matter concerned, which are well known or easily ascertainable, such as the designation or position of a person or the distance between two locations, need not be formally proven and the presiding officer may take “judicial notice” of such factors and admit it as if properly adduced.
Distinguishing between admissions and confessions
An admission is distinguished from a confession in that in the event of a mere admission, only some of the facts relevant to the matter are admitted to, which still does not exonerate the opposing party to prove the charge against the employee.
A confession, on the other hand, entails the admission of all the relevant facts underpinning the charge against the employee, thus effectively doing away with the need to provide any further proof of the charge.
The criminal law standards pertaining to the admissibility of admissions and confessions do not apply in internal disciplinary matters, where the principal yardsticks in this regard are relevance and fairness.
Ensuring compliance with the audi alteram partem-principle of natural justice.
Throughout the disciplinary proceedings the presiding officer should remain mindful of the legal requirement that a participant must be given the opportunity to be heard before any decision or conclusion is reached about a matter, the participant has a legitimate interest in.