Pursuant to the said objective, the Commission for Conciliation, Mediation and Arbitration ('CCMA') was established under section 112 of the LRA. The CCMA must attempt to resolve any dispute referred to it under the LRA or other legislation by conciliation.
Purpose of the Study
Accredited Bargaining Councils are accredited to perform the same dispute resolution functions as the CCMA in certain disputes. Its primary purpose is to examine the presentation and admissibility of evidence in statutory arbitration hearings, that is, arbitrations conducted within the meaning of the LRA.
Introduction
Jurisdiction of the CCMA and Bargaining Councils
Representation in the CCMA and Bargaining Councils
Supreme Court of Appeal per Malan J, in consultation with the learned judge concluded that the rule served a legitimate governmental purpose and held that in relation to binding established authority - there was no general right to legal representation in administrative tribunals.23 The full bench agreed on this position and accordingly the SCA provided some clarity on the right to representation in the CACA. r _ _, Con1nzission for Conciliation, )Vf ediarion and Arbitration and Others v La1v Society oj'the 1Vorthern Provinces (note 21above)26.
Introduction
- The Traditional or Adversarial Approach
- Inquisitorial Systems in the South African Legal System
- lnquisitorial Systems in other Labour Jurisdictions
Determining the Format of Arbitrations Conducted under the LRA
- Introduction ................................................................................................................... I 0
- The Rules ofEvidence
The next part of the memorandum43 deals with the solution to this problem in the bill. The nature of Article 138 establishes a positive obligation for arbitrators to intervene actively in the proceedings if the essential content of the dispute needs to be addressed.
Conclusion
On the contrary, it can be inferred from the salient points in s 138 that an arbitrator must intervene only to the extent that the dictates of justice warrant such intervention or where it is necessary to ascertain and deal with the substantial merits of the dispute. It is submitted that an arbitrator cannot successfully achieve the mandate enumerated by s 138 of the LRA by circumventing strict legalism without having exceptional experience and knowledge of legal proceedings to begin with.
Background and Purpose of the Law of Evidence
Evidence and Proof
Evidence is a demonstration of the truth or falsity of some argument or claim based on evidence and arguments. 84 With conclusive evidence, however, the evidence is considered to be final and no rebuttal can be advanced. Schwikkard claims that the term prima jacie proof is often used incorrectly as a synonym for prima ji:1cie.
Evidence in Labour Law
Documentary evidence typically constitutes an important component in terms of the evidence adduced at arbitration hearings. The Magistrate's Court Rule 29 determines that the duty to present evidence first is linked to the occurrence of the burden of proof in the circumstances. An arbitrator must be aware of the cumulative effect of the factors in relation to the overall weight of evidence.
Introduction
One of the basic rules of evidence is that a party will not be able to rely on a fact unless there is consensus between the parties about that fact or it has been proven by a witness or document. 92 S 138 of the LRA provides that disputing parties may give evidence, call witnesses, cross-examine the other party's witnesses and may further address closing arguments to the commissioner.
Oral Evidence
The proceedings that follow begin with a witness statement, then the opposing party will cross-examine the witness, and then the party that called the witness may re-examine the witness. Once this is completed, the opposing party has the right to re-examine the witness, and the party who called the witness may re-examine the witness to clarify any points raised during cross-examination. Leading questions are framed so that the witness suggests an answer or assumes the existence of certain facts in dispute.96 In the case of Modikwa Mining Personnel Services v Commission for Conciliation, Mediation and Arbitration and others, the Labor Court found that the commissioner by 'almost complete' leading the witness did a verifiable irregularity within the meaning of s 145 LRA.
Real Evidence
- Computer Generated Material
Documentary Evidence
- Photographs, Videos and Camera Surveillance Footage
Photographic and video evidence is considered to be documents for the purposes of evidence. The witness must establish through the evidence that the evidence depicts true representations of the objects or persons they purport to represent and that there have been no changes to the photo or video material. Arbitrators must exercise caution when relying on both video footage and photographs due to the inherent risks that may arise.
Introduction
It is necessary to make the distinction between the concepts 'burden of proof' and that of the 'burden of proof'. The standard of proof provides for how much evidence is required from the party bearing the burden of proof. As noted earlier, it is the duty of the arbitrator to draw inferences from the facts placed before him.
The Onus of Proof in Labour Law
- The Onus of Proof per the LRA
- Section192: Onus in Dismissal Disputes
- Section 187: Onus in Automatically Unfair Dismissals
- The Onus of Proof per the EEA
The Duty to Begin
Evidentiary Burdens: EEA
Evidentiary Burdens: LRA
Introduction
Once it is determined which of the parties to a dispute bears the burden of proof, it is necessary to know what level or standard that proof should be. If a party is to successfully convince a presiding judge that their version is more likely than the opposition's, in meeting the burden of proof, that party must present evidence of a certain prescribed standard.
In employment law and CCMA arbitration, the standard is also that of proof on a balance of probabilities. It is accepted that the standard of proof covered by civil law and necessarily arbitration is of a lower threshold than that covered by criminal law. This case illustrates that the less burdensome standard of proof in civil law and arbitration could have a very different result if tried in a criminal court.
Conclusion
The case of EarZv Bird Farms (Prv) Ltd v Mlambo152 is extremely useful in illustrating the implications of the two evidentiary standards in practice. All that the appellant had to do was to prove on the balance of probabilities that the respondent had committed the alleged infringement. The LAC found that on the balance of probabilities the employer had sufficiently proved both allegations and the dismissal was fair.
- Introduction
- The Concept of Admissibility
- Relevance
- Excluding Relevant Evidence
- Admissibility and Weight of Evidence Distinguished
The general rule is that evidence is admissible if it is relevant to the issues in dispute. However, the circumstances of the dispute may justify admitting evidence even if it is not relevant to the facts in question. The admissibility of evidence must be determined through a degree of flexibility on the part of the arbitrator.
Introduction
How is Evidence Evaluated?
However, the SCA held that these proposals were not a permissible development of the law and contravened the Sidumo test. The task of the arbitrator is to draw conclusions and draw conclusions based on the proven facts presented by the witnesses. Entrapment occurs when an agent or employee of the employer cooperates with the employee in the commission of a crime.
Probability, Credibility and Reliability
- Introduction
- The Substantive Law
- Nature and Effect of the Arbitration Award
- Grounds for Review
187 Certification of the award by the relevant director of the CCMA is probably the most efficient way to enforce a CCMA award. The SCA in Herholdt rejected this review of the LAC and held that the review wrongly lowers the review threshold set out in the majority judgment in Sidumo. A review of a CCMA award is permitted if the defect in the procedure falls within one of the grounds in Article 145(2)(a).
- Introduction
- Privileged Information
- Paro! Evidence
- Admissions and Confessions
- Direct and Circumstantial Evidence
Evidence will be admissible in arbitration hearings provided that the inference drawn from the evidence is consistent with proven facts and that the inference drawn is. All that is required in arbitration hearings is that the arbitrator be able to draw an inference from the circumstantial evidence and that this inference is the most plausible inference that can be drawn. The circumstances led to the inescapable conclusion that the employee was involved in the fraudulent transaction.
Introduction
Admissibility
The case of Naraindath v CC111A et al.210 noted that an arbitrator's reliance on hearsay evidence, where the arbitrator is satisfied that such reliance is properly justified and procedurally logical, will not constitute a reviewable irregularity. Such reports will generally be admissible as the employee as the patient can attest to the authenticity and consistency of the certificate or report. Where the technical contents of such a report, namely those relating to medical problems outside the employee's patient knowledge, become the subject of a dispute, the contents will constitute hearsay evidence in the absence of a physician's testimony.
Conclusion
However, arbitrators are not bound by the strict rules of evidence and the Labor Appeal Court found that medical certificates can be taken into account without being accompanied by a doctor's testimony where it is supported by other reliable evidence.211.
Admissibility
The decision of the KNJ in Gag1z2'4 in dealing with similar factual evidence has effectively lowered the threshold for the admission of unfair prejudicial material in arbitration hearings. 215 While 138 of the LRA provides that commissioners conduct proceedings with minimal legal formalities , it does not. means that evidentiary safeguards relating to the exclusion of similar fact evidence may be disregarded.
Conclusion
Introduction
Admissibility
- Polygraph Testing
Arbitrations do not constitute civil proceedings within the meaning of section 42 of the Evidence in Civil Procedure Act 25 of 1965. Polygraph evidence as a lie detector is opinion evidence which attempts to indicate the guilt or innocence of an accused employee. 970 (2) SA 223 (N) notes that the more obvious the physical signs of intoxication, as claimed by a reliable and credible lay witness, the easier it is to dispense with medical and technical evidence.
Introduction
Admissibility
- Interception of Communications
- Monitoring and Searches
- Entrapment
The employer must demonstrate that there are compelling reasons within the business context that make it necessary for the content of those conversations to be made public. He drew the line at persistent tapping of an employee's work phone and discovered that the employer could and did obtain evidence against Moonsamy in a less intrusive manner. Evidence obtained as a result of entrapment is admissible if the employer reasonably suspects the employee of misconduct.
Conclusion
Evidence obtained in this way will be inadmissible if it gives the worker more than an opportunity to commit an offence. In City of Cape Town Council v SAi\!JWU and Others 236 the court found that evidence obtained during the trap and cas (what the employees did and said during the trap and the information disclosed by the agent) was inadmissible, because there was no adequate prior suspicion about the employees. In addition, the agent overstepped the bounds of Section 252A of the Criminal Procedure Act by actively encouraging and unduly inciting the employees to commit the offence.
A sound understanding of the law of evidence and related procedures would go a long way in complying with the objects of arbitration - circumventing strict rules of evidence, while ensuring efficiency and a fair result. Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces ZASCA 118. Wolters Kluwer Bouvier Law Dictionary Compact Edition New York: Wolters Kluwer Law & Business, (2011.
