Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
It is a well established and non-negotiable requirement that the employee accused at a disciplinary hearing be allowed to defend himself. This includes challenging the employer’s evidence.
As a result it is essential in all disciplinary hearings that, once the complainant’s witnesses have testified, the accused employee is given the opportunity to cross-examine them. That is, the employee must be allowed to question the evidence brought against him/her in order to be able to show the presiding officer the employee’s side of the story.
It often happens that the employee, while cross-examining a witness, asks questions that appear to be irrelevant to the case. The chairperson is entitled, for purposes of clarity, to ask the employee how the line of questioning is relevant to the charges. However, the presiding officer is not entitled to interfere unduly with the employee’s cross-examination of the complainant’s witnesses. There is therefore a very fine line between what the chairperson is and is not allowed to do. This is a key reason why the presiding officer needs to be properly skilled in labour law and disciplinary hearings.
Labour Relations Act (LRA)
The LRA neither deals with the employee’s right to cross-examination nor prescribes the extent to which the employee can digress from the point of the hearing. However, CCMA arbitrators and Labour Court judges all insist that employees are given the right to cross-examine the complainant’s witnesses. This is because such cross-examination is the democratic right of anyone accused in any formal process.
Interfering with this right without sound reasons is likely to land the employer in serious trouble.
Botha vs Macsteel Trading (Pty) Ltd
In the case of Botha vs Macsteel Trading (Pty) Ltd (2007, 3 BALR 197) the arbitrator found the dismissal to be unfair partly because the chairperson of the disciplinary hearing took over the cross examination from the complainant.
Whether the presiding officer steps out of line knowingly or unintentionally makes no difference. If such an error on the presiding officer’s part potentially interferes with the rights of the accused employee the employer is likely to lose its case at the CCMA. This is the reason that employers are now, more than ever, tending to have their managers properly trained in labour law and in the management of discipline.
The wise employer also hires a labour law expert to chair its more serious cases that could end up in dismissal and in a CCMA hearing.
