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HR 101 – Avoid Using Hearsay

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Please note that this pertains to South African Labour Law and Best Practice requirements.

I am sure we have all watched the legal type movies on TV where whoever is in the witness box being questioned, says something along the lines of ‘Joe told me . . . .’ and then the oppositions lawyer stands up and says “objection – hearsay”! Well that’s the way the law says that you cannot give evidences about what someone else said!

I have, of late, been the chair of several disciplinaries and in most cases, the employees have, in an attempt to gather sufficient evidence to be able to get a verdict of dismissal, relied on their verbal evidence. Now that is all fine as long as the person being disciplined actually agrees that the complainant’s (usually the employers) evidence is correct. The minute they disagree with what is being said, a problem occurs as it becomes a ‘he said/she said’ type of situation.

Having documentary evidence is of vital importance and is also a legal requirement. So for example, it would be important to have the written procedure in place as well as the documented evidence that the procedure has not been followed. That said, it is equally important to have the correct person present the evidence at the disciplinary hearing. Having someone for example, who is not well versed in the policies and procedures in the company or who is totally unaware of what actually happened will result in more harm than help to the case, as the manner in which the evidence is presented is almost as important as the evidence.

The document that is presented should also be in the original form and the fact that the document is authentic would also need to be established. This is to ensure that documentation is not suddenly produced ‘after the fact’ and also to ensure that the information in the documentation is relevant and admissible to the case.

The usual procedure is for the complainant to give oral evidence at the hearing and the oral evidence would then be backed up by the documents as and when they are entered into evidence. Witnesses would then be brought forward to corroborate the evidence both verbally and with the relevant documentation. Showing or evidencing that the accused employee is aware of the contents of the documentation could then also be necessary.

Let me be clear on something though – if the document cannot be proved to be authentic then the document and its contents cannot be admitted into evidence. The party (being the complainant or the accused) who enters the document into evidence, holds the burden of proof.

There is only one type of evidence that the chairperson of a disciplinary hearing can accept as the truth without the burden of proof and that is called ‘A judicial notice’. This pertains to certain facts that would be commonly known and it means that it is not necessary for any evidence to prove these facts. An example of this, is an ICU (Intensive Care Unit) nurse is charged with smoking in a dangerous and non-smoking area whilst she is attending to patient who is on oxygen.

Usually the complainant would have to prove that the accused actually smoked in the ICU and also that the ICU is actually a non-smoking area and that smoking near someone who is on oxygen is dangerous. In this instance the chairperson could rule that the complainant need only prove that the accused was indeed smoking, as it is a judicial notice (an acceptable fact) that it is dangerous to smoke in an ICU area.

Basing a hearing on ‘knowing’ that the accused is guilty or only documentary evidence or only witness testimony is not a good idea. You have to have sufficient ‘admissible’ evidence both oral and documentary, to prove the guilt of the accused.

Remember too though, that no matter how much you have proved the accused guilty to yourself, it also has to be proved in the perspective of the chairperson/arbitrator or Labour Court judge.