Investigation is the gathering of facts and not making assumptions part 2

Below please find something of interest specifically for you:

In our last Newsflash we reviewed the Judgment in NEHAWU obo Matras versus Medi Clinic Potchefstroom. The review angle was that assumptions made by your HR Department are unhelpful at the CCMA wherein the employer requires supporting evidence to prove that the dismissal of the employee is fair, on a balance of probabilities. ?

Facts:

The employee obtained a medical certificate wherein the medical doctor was only told about his illness and did not examine him. Previously, the employee had mentioned to his employer that he would attend a wedding in George. The wedding was during the same period as the sick leave. The employer on these facts charged and dismissed the employee. The medical certificate was not investigated. No other evidence, besides conjecture was led. In this newsflash, let us consider an obvious mistake by both parties.

Rubric:

Who bares the onus to prove the validity of a medical certificate?

Rubric answered:

Simply and concisely put: S/he who alleges that the medical certificate is valid and viable must prove! The Basic Conditions of Employment act allows an employer to withhold payment for sick leave days, if the employee is absent from the workplace for more than two consecutive days or on more than two occasions in an 8 week cycle. It is the employee who must provide a medical certificate. The Labour Court has expressed that a medical certificate without a report or affidavit is merely hearsay evidence. This means that the employee must show that the medical certificate was not utilised to play, amongst other things, truant. Employees who are paid for a day’s work when their medical certificate is bogus have committed fraud and considered dishonest.

What is hearsay evidence?

Hearsay evidence is a type of evidence that is based on a statement made by someone other than the person presenting the evidence in court. In other words, it is second hand information that is being offered as evidence of the truth of the matter asserted in the statement. Generally, hearsay evidence is not admissible in court unless it falls within a recognized exception to the hearsay rule. One exception is when the person who made the statement is unavailable to testify in court. In this situation, the statement may be admitted as evidence if it falls within a recognized exception to the hearsay rule, such as, the witness cannot be found, or is deceased or the testimony is against the witness’ own interests. Another exception is when the statement is not being offered to prove the truth of the matter asserted, but rather to show the effect the statement had on the listener. For example, if someone testifies that they acted based on what someone else told them, the statement may be admissible to show why the person took that action, even if the truth of the statement is not at issue. In some cases, hearsay evidence may be excluded even if it falls within a recognized exception, if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading. Overall, the admissibility of hearsay evidence is a complex issue in evidence law, and it requires careful consideration of the specific circumstances of the case and the applicable rules of evidence. This is our speciality if you need assistance do not hesitate to contact us.?

What does accepting hearsay evidence mean?

When hearsay evidence is accepted one party deprives the other party of a fair hearing. In Exxaro Coal (Pty) Ltd v Chipana and Others the Labour Appeal Court determined a matter in which the employer had placed reliance on hearsay evidence and the commissioner had failed to deal with the issue of its admission timeously.

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Next Up: How to gather evidence (part 3).