Uncontested evidence during cross-examination.

Delmas Coal (Pty) Limited vs CCMA, Commissioner Lizelle Kriel Wessels and Doctor Simon Sehaladi (June 2018)

 Arbitration can be quite a challenging process, with both parties having to properly apply their minds to the arguments and evidence to put forward. Considering the burden of proof is based on the balance of probabilities, parties need to carefully analyze what evidence are relevant and plan how to lead this evidence in a simple, yet structured way that will enhance one’s prospects.

 During arbitration, proceedings are recorded. Opportunity to forward evidence typically happens during your evidence in chief, in which, you will have an opportunity to present your arguments and evidence to the opposing party as well as the Commissioner. During this time a party may put forward any documentary evidence, witnesses, audio, video recording and any evidence that may be relevant to one’s case. One important aspect for subtracting evidence though, yet often forgotten, is during cross-examination of the witnesses of the opposing party.

 I have often found that employer representatives during a discipline enquiry do not adequately prepare for cross-examination and is often just too happy to say ‘no questions’. What representatives often forget is how valuable a tool cross-examination is as a source of information. What representatives also often forget is that a Commissioner commits a latent irregularity (when a Commissioner fails to properly apply his/her mind to the evidence that was put before him/her, including cross-examination). It goes without saying then that a Commissioner must closely follow the cross-examination process and scrutinize information that was gathered this way, especially uncontested evidence. It is critically important for parties to take note of the testimony of witnesses during cross-examination and properly rebut any evidence that you may be in disagreement with, as if not, uncontested evidence will have to stand for what it is.

 The importance of this fact was demonstrated in the Delmas Coal vs CCMA case whereby the Commissioner, failed to apply her mind to uncontested evidence during cross-examination. The employee, Doctor Simon Sehaladi, was employed as a fitter on a mine. He was dismissed on the 4th of October 2016 on charges relating to the theft of company property, being in the possession of stripped cables, gross dishonesty, illegally entering the work area and failure to carry out a legitimate instruction.

During arbitration, four witnesses was called to testify. The second witness, a security officer, testified that he received a report on the 9th of September 2016 that the employee and a co-employee had been seen the previous day using a mine vehicle, without authorization, exiting a gate not recognized as a general access gate. Another security officer also testified that on the night of the 15/16th of September 2016, suspicious activity was reported at a T-Junction on a gravel road close to the mine. He testified that whilst on his way to the mine he actually met the employee on the road. The witness testified that the employee was on fatigue shift and was thus not permitted to be on the mine’s premises.

 The employee’s vehicle was searched but nothing was found. Later, however, stripped cables were found, in bags, dumped next to the gravel road where the employee had been seen. In addition, the employee was dressed in his work overalls, which is not allowed outside the mining area. Another witnesses testified that on the night he saw a mine vehicle exiting the mine and turn a T-junction on the gravel road. He saw the passengers off-loading bags; however, he could not see who the passengers were. A certain Mr. Mothutsi testified that on the night of the 15/16 September 2016 he received a call from the employee to assist him underground, to open the gate in order for them to load a bin containing rubbish.

 The employee’s defense was that at the time he went to visit a friend when he was spotted on the road, that he was not identified as the culprit, that there was no record of him entering the mine and that nothing was found in his vehicle.

 The Commissioner found that the employer’s evidence was merely circumstantial and that there was no proof that the employee was guilty of the allegations against him. She found that the dismissal was procedurally fair, but substantively unfair. She ordered reinstatement with retrospective effect.

 The employer then approached the Labour Court on Review arguing that the Commissioner failed to consider material evidence presented during the hearing. The employer argued that a witness, Dlamini, gave undisputed evidence that at the time of the incident that the employee was being monitored on account of suspicious conduct. The employee did not dispute that his conduct on the evening had been suspicious. In addition, Dlamini testified that on the night when the employee was pulled over, he was wearing his mine uniform. This version was also confirmed under cross-examination of Mafastela that he saw two people wearing mine overalls. The testimony of both witnesses was left undisputed. It was only during the third witness that the employee put it to him that the uniform he was wearing was not mine uniforms. He failed to put this version to the two previous witnesses. Under the pressure of cross-examination, the employee changed his version when confronted as to why he failed to contest the testimony of the two witnesses put before him. As such, his failure to rebut the two witnesses should have led to any reasonable decision-maker to conclude that the evidence was not circumstantial but instead demonstrably indicative of the fact that the employee was in fact on the mine of the night of the 15 to 16 September 2016. Furthermore, Dlamini’s uncontested testimony that strip cables were found in bags on the gravel road close to the mine was ignored by the arbitrator.

 Judge van Niekerk of the Labour Court found:

 “In short, in my view, the only decision that a reasonable decision-maker could reach on the available evidence is that the uncontested evidence of the applicant’s witnesses, together with the Blessing statement, demonstrated that the third respondent and Blessing were being monitored for suspicious behavior on the night of the incident, that they were on the mine that night, that a mine vehicle was seen leaving the mine and the driver and passenger of that vehicle seen offloading something into the grass area where stolen cables were later found. The holistic evaluation of all of the evidence points only toward the undeniable conclusion that the third respondent was guilty of the misconduct with which he was charged.”

 Also

 “ Had the arbitrator properly considered and assessed the evidence before her, she would have arrived at the conclusion that the third respondent was guilty of the misconduct that he was charged for.”

 What we learn from this case is that cross-examination is a critical component of subtracting evidence from a witness and should not be ignored. Decision-makers should be alive to uncontested evidence during cross-examination. In addition, representatives should ensure that details of evidence during cross-examination are carefully noted and that any evidence that one is not in agreement with is properly rebutted.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Senior Labour Relations Specialist for Ulwazi Labour Relations and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512 or visit:www.ihconsult.co.za/labour/