The right to cross-examine witnesses at a disciplinary enquiry
[Tuesday, April 06, 2010 15:15:29] It is well known in South African labour law circles that disciplinary enquiries are usually far less formal than proceedings in the courts. The Labour Court underlined this principle in the case of Avril Elizabeth Home For The Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC). However, this does not mean that the employer and employee do not have the right to test the veracity of the other party’s evidence. In fact there is a duty on them to do so!
In Hartlief Continental Meat Products v Mutotua & Others (2000) 21 ILJ 1421 (LCN) the Namibian Labour Court found the disciplinary enquiry to be procedurally unfair because the employee was not afforded an opportunity to cross-examine the employer’s witnesses. To what extent should the employee and employer be allowed to cross-examine the other party’s witnesses where the proceedings are informal and often not conducted by lawyers? I suggest that the following points should guide the parties (I will use the perspective of the employee):
1. The employee should normally put his version of the events to the employer’s witnesses, because the chairperson makes a decision on a balance of probabilities. Because the employer calls its witnesses first, it is up to the employee to put his version of the events (or “his side of the story”) and to actively challenge the correctness of the witness.
2. In putting his version to the employer’s witness, the employee must attempt to show the chairperson that the version put forward by the employer’s witness is either incorrect, not believable or flawed in one or more respects.
3. The chairperson has a duty to explain the importance and the nature of cross-examination to the employee. If the employee does not grasp the nature or importance of cross-examination, the effect and impact of his cross-examination or his attempt thereat, will be lost, to his prejudice.
In Boyd v Metrofile (1999) 4 LLD 333 (CCMA), the commissioner found that the right of an employee to question witnesses forms part of the audi alteram partem rule (or “hear the other side”), and that the employee had been prejudicially affected by being unable to cross-examine the employer's witnesses. The employer was ordered to reinstate the employee and to pay him seven months’ salary as compensation.
More recently, in SAMWU obo Abrahams & Others v City of Cape Town (2008) 29 ILJ 1978 (LC) the Labour Court interfered with a disciplinary enquiry and issued an interdict against the employer (the Labour Court does not easily interfere in internal disciplinary enquiries) where the employer attempted to take a short cut by cutting out oral evidence and thereby denying the accused employees’ the opportunity to cross-examine the employer’s witnesses.
In conclusion it is therefore important for employers to ensure that they do not dilute or hamper the employee’s right to cross-examine company witnesses. It is equally important for employees to note that they should make a proper effort to cross-examine the company’s witnesses and to put their version of events to them.