Minister of Police v M (JR56/14) [2016] ZALCJHB 314 (2017) ILJ 402 (LC) (19 August 2016) per Whitcher J.

The LC reviewed and set aside an award and remitted the matter for a fresh formal hearing.  The employer relied only on the record of the internal investigation as it was unable to secure the attendance of any witnesses.  Arbiters need to give special attention to such records even if the witnesses did not testify under oath.  Useful guidelines have been provided by Whitcher J.  Unless otherwise agreed employers are not obliged to conduct a formal internal ‘hearing’.  But if they do so steps should be taken to ensure that it is properly recorded.

LC summary:

Review of arbitration proceedings – s 145 of the LRA – transcript of internal hearing admitted as hearsay evidence – admissibility and weight of hearsay evidence in arbitration proceedings-– vulnerable victim witnesses

Excerpts without footnotes

[2]        Parallel to the criminal case, SAPS also convened a disciplinary hearing.  SAPS alleged that when RM ‘violated his minor child without her consent’, he prejudiced the administration, discipline and efficiency of SAPS and further contravened the SAPS code of conduct.

. . . . .

[6]        Consequently, the employer found itself in a situation where the only material it had to place before the SSSBC to prove the substantive fairness of RM’s dismissal were the transcripts of the internal disciplinary hearing.  It applied to have these transcripts admitted as hearsay in terms of the Law of Evidence Amendment Act of 1988, in the interests of justice.

[7]        The third respondent (“the commissioner”) granted the application.  However, the commissioner went on to find that the weight of the evidence derived from the transcripts was minimal without “additional testimony or documents substantiating the allegations.” Consequently, as the arbitration was a hearing de novo, the commissioner found that RM’s dismissal was substantively unfair and reinstated him.  The Applicant seeks to review and set aside this award.

. . . . .

The conduct of the internal hearing

[24]      The transcripts of the internal hearing reveal a presiding officer, Senior Superintendent Matabane, who ran the hearing in a tight, fair and professional manner.  He gave RM’s representative, in particular, more than sufficient time to prepare for the case[1] and to cross-examine the employer’s witnesses.  The representative asked relevant and probing questions of these witnesses.  The chairperson also asked relevant and probing questions of these witnesses.  The result is that this is not the sort of transcript where one notices glaring and possibly exculpatory omissions in the questions asked of witnesses.  By the time each witness was excused, their version was clear, thoroughly ventilated and tested.

[25]      When the time came for RM to testify, the presiding officer permitted a long monologue from the accused employee as he tried to flesh out the conspiracy against him.  Quite correctly, RM had no quibbles at the SSSBC about the procedural fairness of his dismissal.

[26]      None of the witnesses were sworn in but not much turns on this in labour law.  They were quite clearly aware that they were expected to truthfully narrate their experiences.   The transcripts thus represent a record of various witnesses giving evidence that they know should be true and correct.

[27]      The record of the internal hearing was transcribed by a professional transcription service and accompanied by a transcriber certificate, signed by a Ms. Lindeque on 3 November 2016.

The SSSBC award

[28]      As noted above, the key decision the commissioner made in handling the evidence before him was to admit the transcripts as hearsay but then to find that they carried insufficient weight for the employer to have discharged the onus of proof it bore.  . . . . .

. . . . .

Review Test

[32]      In short, where a commissioner ignores materially relevant facts, issues and/or considerations (with this being prima facie unreasonable), the award will be reviewable if the distorting effect of this misdirection was to render the result of the award unreasonable.  And the reviewing court must have regard to the nature of the competing interests impacted upon by the decision.

. . . . .

Analysis

[34]      SAPS arrived at the hearing de novo only with transcripts of the internal hearing with an explanation that SAPS’ main original witness, K, could not be traced to serve a subpoena.   In deciding the ensuing application to have the transcripts admitted as hearsay, the commissioner kept in mind prior admonishments by this court that section 138 of the LRA frees arbitrators from having to slavishly imitate the procedures adopted in a court of law. [Naraindath v CCMA and Others (2000) 21 ILJ 1151 (LC); [2000] 6 BLLR 716 (LC) per MJD Wallis AJ].

Since the transcripts were plainly relevant to the issue in dispute and the employer had a good reason for the absence of its main original witness, the commissioner correctly admitted the transcripts as hearsay evidence.

. . . . .

[36]      Just as an error or irregularity in which a commissioner gives hearsay evidence too much weight may be unreasonable, the opposite is also true.   Not giving hearsay evidence sufficient weight may also constitute a material error or irregularity.  If this error has a distorting effect on the end result, the award is then reviewable.

[37]      In my view, the commissioner did not seem to realise that the transcripts before her were no ordinary hearsay.  The transcripts were hearsay of a special type.

Considered in full, they comprised a bi-lateral and comprehensive record of earlier proceedings

    • in which K’s evidence against RM was indeed corroborated by S and D;
    • in which this substantiation survived competent testing by way of cross-examination; and
    • in which RM’s own defense was ventilated and exposed as being implausible.

. . . . .

[40]      It seems to me that transcripts such as the ones in this case must be afforded greater intrinsic weight than simple hearsay (such as witness statements) because they constitute a comprehensive and reliable record of a prior quasi-judicial encounter between the parties. 

Put differently, it seems perfectly fair that a party such as RM, who the transcript shows faced devastating evidence at an internal hearing which he tried and failed to discredit through cross-examination, should be in a poorer evidential position at a hearing de novo than if he were confronted by these accusations for the first time by way of an untested hearsay witness statement.

. . . . . .

[43]      I do not mean to suggest that transcripts take the place of live witnesses or that arbitrations should not function as hearings de novo.  The issue is that in appropriate factual circumstances, a single piece of hearsay, such as a transcript of a properly run internal hearing, may carry sufficient weight to trigger the duty in the accused employee to rebut the allegations contained in the hearsay.  In this regard, it is worth noting that RM also did not give oral evidence denying the charges and undergoing any cross-examination.  The substance of his own denial is also only recorded in the transcripts.  It may be argued that since the transcripts were assigned minimal weight, he had no case to answer.  This is precisely where the commissioner’s error in evaluating the evidence lay.  A reasonable decision-maker, to my mind, would have appreciated that the transcript did not contain mere allegations but rather tested allegations and a tested denial.

. . . . .

[45]      Since this may be a departure from the norm in how hearsay is weighed, I take this opportunity to set out a few guidelines on when, in arbitration proceedings conducted in terms of the LRA, a single piece of hearsay, such as a transcript, might constitute prima facie proof of an allegation.

The hearsay should:

  1. be contained in a record which is reliably accurate and complete;
  2. be tendered on the same factual dispute;
  3. be bi-lateral in nature.  In other words, the hearsay should constitute a record of all evidence directly tendered by all contending parties;
  4. in respect of the allegations, demonstrate internal consistency and some corroboration at the time the hearsay record was created. For example, the transcripts read as a whole provide corroboration via D and RM, for K’s evidence that she became pregnant at age 14 while living under her father’s roof.  RM’s letter to K about expecting favours in exchange for sex was further corroborated by S;
  5. show that the various allegations were adequately tested in cross-examination. For example, the transcripts record not only K’s allegations but also RM’s attempts to discredit them;
  6. have been generated in procedurally proper and fair circumstances. For example, the internal hearing that generated the hearsay records was run in a scrupulously fair manner by Snr Supt Matabane, with RM free to conduct his defence as he wished.

[46]      In light of what I have stated above, I therefore find that the commissioner erred in unreasonably assigning minimal value to the transcripts.  This mishandling of the evidence would have distorted the outcome of the matter, particularly considering that RM himself did not testify.  For this reason alone the award must be set aside.

. . . . .

[50]      I would imagine that, in light of this judgment and to avoid trundling reluctant and vulnerable victims out to give evidence all over again, parties would have recourse to section 188A of the LRA.  Another way of minimizing the secondary traumatization of vulnerable witnesses is for all parties to an internal hearing ensure that a good record is created of a procedurally fair enquiry is created.

Should the main original witness not be in a position to testify again at arbitration, the accused employee would, in appropriate factual circumstances, still be under a duty to take the stand to rebut the prima facie case against him constituted by the transcript of the internal hearing.  In the present matter, especially if he stuck to his conspiracy defence, it is not difficult to imaging the employee’s oral evidence at the SSSBC still not lifting the evidentiary burden lying against him.