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A case of 'He said, she said'... Make sure your witness is reliable or you could lose in labour court!

by , 29 July 2015
Hearsay evidence isn't reliable. Because it's when someone tells you what someone else said. In other words, it's actually the third account of a story. And the reason why this evidence is suspect, and sometimes inadmissible, is because you can't cross-examine the person who actually saw what happened... Or at least said they did.

If you're not careful it can turn into a game of broken telephone and could cost you... Like it did Shoprite Checkers!

Shoprite Checkers v Commission for Conciliation Mediation and Arbitration and Others (JR2259/11) [2014] ZALCJHB 36 (13 February 2014)
The case shows how careful you need to be when you rely on 'second-hand' evidence. Here's the story…
  • A security officer told the area manager that he saw an employee taking money from a supplier. We'll call the employee 'A'.
  • The area manager started an investigation. Although A didn't want to co-operate at first, she later made two statements. These implicated another employee, 'M'.
  • A also confirmed the information they had on record in the affidavits on video and even did a polygraph test.
  • Because of this information, Shoprite gave M a notice to attend a disciplinary hearing. This was for charges of misconduct.
  • The chairperson found M guilty and summarily dismissed her.
  • The only witness who gave evidence on behalf of the employer in the disciplinary proceedings was the area manager. With his evidence, the employer relied on the statements made by A to secure guilt against M.
  • M challenged at arbitration. The company gave the same evidence. They didn't call either the security officer nor A as witnesses. They didn't have a reason why they didn't call the security guard to give evidence. When it came to A, she just didn't want to get involved in the arbitration proceedings.

Keep reading to see how the case unfolds...
The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly

You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… Find out what it is here...

  • In her first affidavit, A said she was in collusion with M. In this scheme, they receive deliveries of quantities less than what was on the order. The driver's assistant would keep some of the stock. Then sell the stock and share the profits between her, M and the driver's assistant of the suppliers.
  • As regards the evidence led at the arbitration proceedings, the Commissioner held that the evidence led on behalf of the employer constituted hearsay evidence. He said there was no evidence why they didn't call the security officer as a witness. And they didn't have a reasonable explanation why they didn't take steps to secure A's evidence at the arbitration proceedings.
  • The Commissioner said they had to reject the evidence of the area.
  • They couldn't find M guilty based the video recording of A's confession. It would mean that M was guilty on evidence she couldn't challenge in cross-examination.
Because they didn't have direct evidence against M for the misconduct, the Labour Court said her dismissal was substantively unfair.
What can you learn from this case?
If you want to use hearsay evidence in a case against an employee, you must have a good explanation and reasonable justification why the witness isn't there. If the employee denies guilt, you also need to provide any evidence to corroborate the hearsay evidence.

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A case of 'He said, she said'... Make sure your witness is reliable or you could lose in labour court!
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