In accordance with section 188 of the Labour Relations Act, in order to determine whether or not a dismissal is procedurally fair, the court will first look to the Code of Good Practice: Dismissals in Schedule 8 of the LRA.
Clause 4(1) of the Code of Good Practice sets out the procedure to be followed:
The employer must conduct an investigation;
The employee must be notified of the allegations against him;
The employee must be allowed an opportunity to state his case in response to the allegations;
the employee is allowed the assistance of a trade union representative/ fellow employee;
The employer must communicate its decision to the employee, preferably in writing.
Clause 4(4) then states that in exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with the pre-dismissal procedures.
In the present case the issue is whether or not the client may proceed with a disciplinary enquiry where the witness has been the victim of violence and intimidation, and does not want to give oral evidence as he is in fear of his safety.
Traditionally, evidence on affidavit is only admissible where it is affirmed by oral evidence of the deponent, failing which it will be considered hearsay and as such will be inadmissible Further, the accused may argue prejudice, against the use of affidavits, as he will not have an opportunity to cross examine the evidence in the affidavit.
The Employer may however have recourse in legislation on the grounds that these are exceptional circumstances, as per clause 4(4) of the Code of Good Practice, that warrant a deviation from the natural laws of justice. Further to this section 3 of the Evidence Amendment Act 45 of 1988 affords the Court a discretion to admit hearsay evidence, subject to taking various factors into account.
In the case of FAWU obo Kapesi & Others v Premier Foods Ltd t/a Ribbon Salt River (C640/07);  ZALC 61;  31 ILJ 1654 (LC);  9 BLLR 903 (LC) 4 May 2010 the Court, at paragraphs 41 to 45 of the judgment of Basson J, dealt with when the evidence of witnesses given in statement only may be deemed admissible In casu the witnesses had been subject to violence and intimidation to the extent that the main witness disappeared on the morning of the disciplinary hearings, never to be seen or heard from again. The remaining witnesses had given statements, but refused to give oral evidence as they feared for their safety. These statements formed part of the bundle before the Labour Court, with the names of the deponents blacked out.
At paragraph 45 Basson J expressly stated that “it is possible to proceed with a disciplinary hearing on the basis of written statements in circumstances where the witnesses are too scared to testify… Allowing an individual to get away with their acts of misconduct simply because they intimidate potential witnesses will destroy the very foundation on which our society is built.”
The learned Judge used numerous case law, where the the courts had approved an employer’s decision to rely on witness statements, to substantiate his findings. One of these cases was Food Allied Workers Union v G Smith Sugar Ltd(1989) 10 ILJ 907 (IC) at 917 D-E. In this case the employees were dismissed after an enquiry where the employer relied on written statements as the accusers refused to have their identities disclosed. The accused were therefore not given an opportunity to confront or cross examine the witnesses. The Industrial Court held that “in this particular case the individual applicants knew the details of the factual allegations against them. They were able to deal with the facts. The fact that use was made at the enquiry of statements from unidentified witnesses and that no opportunity was given to put questions to or to cross examine the witness did not prevent the applicant from producing their evidence nor of correcting or contradicting the prejudicial statements.”
At the essence of the Code of Good Practice is that the accused employee should have an opportunity to present his case in answer to any allegations against him. The interests of justice need to be weighed against any prejudice the accused employee may suffer. Lastly, the test to be applied, in respect of the admissibility of statements , as set out in the G Smith Sugar Ltd case is whether the said statement is relevant, reliable and logically probative and of such a nature that responsible people would rely upon it in serious offences.
Thus if the statement meets the test herein and is comprehensive enough for the accused employee to answer to the allegations, then in that event the witness need not give oral evidence and may have his identity protected. It is further opined that a genuine fear of personal safety would fall under the umbrella of clause 4(4) of the Code of Good Practice’s exceptional circumstance, as a reason to deviate from the pre-dismissal procedures.