When an employee’s job is at stake it is important to ensure that the evidence used to charge him is valid, true and reliable. If the evidence doesn’t meet this standard a dismissal is likely to be ruled unfair.

One example of unreliable evidence is hearsay. This is indirect evidence provided by someone other than the person who has direct knowledge of the alleged fact, or by a document that is based on information of which the author does not have direct knowledge. In other words, hearsay evidence is second hand evidence.

For instance, the complainant may call the bookkeeper as a witness who might testify that the accused employee was seen by the accountant making false entries in the books of account. The bookkeeper’s evidence is hearsay because he/she did not him/herself see the false entries being made. His/her evidence that the accountant saw the alleged incident is hearsay, indirect or second hand.

Another example of hearsay evidence at a hearing is where one of the parties hands the presiding officer a written statement but the writer thereof is not brought as a witness.

Even when such evidence is admitted by exception into evidence it does not have the strength of direct or firsthand evidence.

The reasons that hearsay evidence is considered as suspect at best and impermissible at worst include that it increases the possibility that the evidence has been intentionally fabricated because the originator is not there to confirm it. It also increases the likelihood that there may be errors in the hearsay evidence placed before the hearing and that the person presenting it might have misunderstood the originator. In addition, the opposition party who may wish to dispute the evidence is not given the opportunity to cross examine the originator of the evidence.

In the matter between SITA vs De Freitas (Lex Info 26 March 2024. Labour Appeal Court case no. DA27/22) SITA dismissed De Freitas for procurement violations. At the CCMA De Freitas stated that he had not breached SITA procurement procedures and that he had not been the only official involved in the process for approving the service provider in question.

De Freitas had been fired based on the allegation that he had irregularly approved the appointment of a service provider who had allegedly not attended a compulsory site meeting. However, there was neither direct evidence that the provider had failed to attend the site meeting nor that a compulsory site meeting had taken place nor that De Freitas had the responsibility of checking such attendance. Thus, neither of the employer’s witnesses were able to give direct evidence to prove that De Freitas had breached SITA procurement procedures. Nor were they able to justify why he had been singled out for discipline.

The arbitrator found De Freitas’s dismissal to have been unfair, awarded full reinstatement with 15 months’ backpay and ordered SITA to pay the employee’s legal costs. After the Labour Court upheld this award the Labour appeal Court did the same and ordered SITA to pay the employee’s court costs.

This case dragged for five and a half years. In addition, the employer had to bear extensive litigation costs and had to reinstate an undesirable employee. This acts as a warning to employers to ensure that those responsible for disciplinary matters receive training in gathering and presenting evidence.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

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To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za