Despite the fact that dealing with hearsay evidence is now encoded in section 3 of the Law of Evidence Amendment Act 45 of 1988 (‘the Evidence Act”), many lay people (who present at disciplinary hearings and/or arbitrations and/or chair disciplinary hearings) and certain CCMA and Bargaining Council Arbitrators labour under the misconception that any and all hearsay evidence is inadmissible The Court of Appeal's decision sits alongside a number of recent decisions of the High Court and Court of Appeal on the issue of the admissibility of hearsay evidence in disciplinary proceedings (namely Ogbonna v NMC, Bonhoeffer v GMC, White v NMC and Thorneycroft v NMC). evidence once considered excludible has been most prevalent in the field of administrative law, of which university disciplinary hearings form a part. misconduct against Mr Chipana, at both the disciplinary hearing and subsequent arbitration at the Commission for Conciliation, Mediation and Arbitration (“CCMA”), was essentially hearsay. Witnesses are therefore critical and their evidence must be reliable. This was despite the fact that it was hearsay. The … However, where a presiding officer of a disciplinary hearing illegally admits hearsay evidence in dismissing an employee this is most likely to result in the CCMA or … Evidence in a disciplinary hearing, at the CCMA or the Labour Court is important. Review dismissed. In order to discharge this onus, an employer must produce admissible and reliable evidence at the enquiry. The Hearsay … This occurs, for example, where the person placing the evidence before the presiding officer is not the person who witnessed the incident. Background and disciplinary proceedings A complaint of inappropriate and sexually motivated conduct was made by a colleague against Mr Squire, the appellant police officer. Hearsay evidence is a written or oral statement made otherwise than by a witness giving his own first-hand evidence in proceedings. In order to discharge this onus, an employer must produce admissible and reliable evidence … A recent UK Court of Appeal case (Squire v CC of Thames Valley Police @ P.A.T [2016] EWCA Civ 1315) has re-emphasised that uncorroborated hearsay evidence can be admissible in disciplinary proceedings. At a disciplinary hearing, the chairperson should reject evidence that is legally inadmissible. There are certain exceptional circumstances where hearsay evidence might be accepted to a limited extent. However, a transcript of disciplinary procedures is regarded as prima facie evidence if it meets the criteria in the Minister of Police v M and Others case. Should such evidence be admitted it could result in serious prejudice to the accused, and excluding it could result in the employer or victim suffering. Hearsay evidence is not reliable! The High Court has found that as a general rule it would be unfair to admit anonymous hearsay evidence in professional disciplinary cases. Use of hearsay testimony as evidence presents questions regarding the informers' sincerity, memory, perception and narra-tion. ... ‘ The employer’s decision in the disciplinary hearing was based on hearsay evidence. Principles governing admission of hearsay evidence. Can hearsay be used at a disciplinary hearing - Answered by a verified Solicitor We use cookies to give you the best possible experience on our website. Similar fac- The transcripts of the disciplinary hearing will often be used as evidence by whichever party deems it favourable to their cause. This was despite the fact that it was hearsay. Hearsay evidence in Disciplinary Hearings [Friday, November 20, 2009 11:25:58] The onus is on an employer to prove, on a balance of probabilities at a disciplinary enquiry that an employee is guilty of misconduct. Relying on hearsay evidence is always perilous, even in the case of disciplinary hearings, even though the formal rules of evidence do not apply with full force to these proceedings. For instance, the complainant may call the […] 4.3 The problem with hearsay evidence ..... 7 4.4 Is hearsay evidence never admissible in hearings and arbitrations? Hearsay evidence is a written or oral statement made otherwise than by a witness giving his own first-hand evidence in proceedings. Hearsay evidence in Disciplinary Hearings [Friday, November 20, 2009 11:25:58] The onus is on an employer to prove, on a balance of probabilities at a disciplinary enquiry that an employee is guilty of misconduct. Disciplinary hearings Hearsay is an out of court statement offered for the truth of a matter asserted by the litigant attempting to introduce it into evidence. The Admissibility of Evidence by Statement in a Disciplinary Hearing By Ian Mc Laren 18/07/2011 No Comments 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. The commissioner effectively found that the hearsay evidence was to be excluded because it had not been Not reliable evidence by any stretch of the imagination. Furthermore, it is imperative to attach weight to the hearsay evidence allowed. Lastly, hearsay evidence should be corroborated by other evidence before a decision is made. Justice: admitting hearsay evidence in disciplinary case ruled irrational Solicitors facing disciplinary proceedings could find it easier to challenge hearsay evidence after the High Court ruled that a General Medical Council (GMC) panel had breached the claimant’s right to a fair hearing by admitting such evidence. Hearsay evidence can be defined as ‘evidence of a statement made by a person not called as a witness, which is tendered for the purpose of proving the truth of what is contained in the statement’. Generally, hearsay is not admissible in any court of law. Summary: Review – arbitration award – admission of hearsay evidence. The right to be accompanied. The admission of the hearsay evidence will advance the cause of justice; Other parties in the case have been notified that the hearsay will be offered into evidence; Exclusions to the Hearsay Rule. Hearsay evidence is a common problem during disciplinary hearings. One type of evidence that may be ruled inadmissible is when it’s hearsay. The Court stated "it is difficult to conceive of circumstances in which the admission of potentially significant evidence which is both anonymous and hearsay will not infringe the requirement of fairness". By continuing to use this site you consent to the use of cookies on your device as described in our cookie policy unless you have disabled them. The employer should provide the employee with all the evidence, typically in the form of witness statements or other evidence, in advance of the disciplinary hearing. Hearsay evidence can render dismissals unfair. When it comes to arbitration, however, both the parties and the arbitrator should avoid hearsay evidence. At the disciplinary hearing, the presiding officer relied on a tape-recorded confession by the employee in which the accused employee was implicated in certain thefts. It must be borne in mind by the parties that the normal rules of evidence that apply to all legal proceedings also apply to all proceedings in the Labour Court, Commission for Conciliation, Mediation and Arbitration and respective Bargaining Councils. Reliance on hearsay evidence in school disciplinary hearings is troubling. Evidence is necessary to proof a case. The informers may have fabricated the charge against Ac-cused for such reasons as malice, prejudice or jealousy. Ivan Israelstam. hearsay evidence. The nature of the evidence [45] A passenger of Singapore Airline lodged a complaint with a staff Hearsay evidence can be defined as ‘evidence of a statement made by a person not called as a witness, which is tendered for the purpose of proving the truth of what is contained in the statement’. During the disciplinary hearing, the General Medical Council`s Fitness to Practice Panel, decided to admit the transcript of the interview in as evidence. The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (LAC: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence, in the context of disciplinary and arbitration hearings. The PAT subsequently heard the appellant’s appeal and found that DC Payne’s hearsay evidence was inadmissible and had led to an element of unconscious bias on the part of the disciplinary … It is clear that if the circumstances are right, the CCMA and other tribunals may well accept the admissibility of videotaped evidence at disciplinary and arbitration hearings. Disciplinary hearings Emphasis of the liberalization has been on such venerable concepts as the hearsay rule, the opinion rule, the best evidence rule, and the rules ofprivilege. It is unreliable because it is when someone tells you what someone else said. By law, an employee or worker can bring a relevant person (‘companion’) with them to a disciplinary hearing. Disciplinary procedures your employer has at work - disciplinary hearings, appeals, suspension, dismissal and help and advice When a presiding officer chairs a disciplinary hearing he /she must hear all relevant evidence offered. There are two types of statements that are not considered hearsay according to the Federal Rules of Evidence. During the disciplinary hearing, the General Medical Council’s Fitness to Practice Panel, decided to admit the transcript of the interview in as evidence. 2 The Hearsay Rule in Evidence The term ‘hearsay’ refers to the situation where a witness reports, during the course of court proceedings, what he or she has heard (from another person) or read. That is, the chairperson does not normally have the right to ignore or to refuse to hear any evidence related to the case. transcript of the disciplinary hearing cannot make credible evidenceas ... the admission of hearsay evidence in this case would have been in the interest of justice. Hearsay evidence occurs when the person who is giving such evidence is not the person who actually witnessed the incident. J. 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