Hearing De Novo Explained

Summary

A hearing de novo in South African CCMA arbitration involves reviewing a case anew, considering both prior disciplinary records and new evidence to assess dismissal fairness. Procedural fairness is crucial, requiring an investigation and opportunity for the employee to respond before dismissal. If the employer concedes procedural faults, it can weaken their defense. Media statements post-dismissal may not breach trust if they concern public interest. The employees dismissal could be challenged as procedurally and substantively unfair if proper procedures werent followed.

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South Africa

Thank you for sharing your location. In South Africa, the concept of "hearing de novo" in CCMA arbitration proceedings means:
- The matter is reviewed anew, not disregarding the disciplinary hearing record.
- The commissioner assesses both the disciplinary record and new evidence.
- The focus is on the fairness of the employer's decision to dismiss.
Would you like more information on how to prepare for a CCMA arbitration?

we bring this case law emphasising that whatever has not been done properly during the disciplinary hearing cannot be corrected post dismissal. Constitutional court has ruled on the matter

Understood, and thank you for providing that information. Here are some key points based on the case law and the Constitutional Court's ruling in South Africa:
- **Hearing de novo**: The matter is reviewed anew but does not disregard the disciplinary hearing record.
- **Role of Commissioner**: Assess both the disciplinary record and new evidence to determine fairness.
- **Corrections Post-Dismissal**: Errors in the disciplinary hearing cannot be corrected at the arbitration stage.
- **Court Rulings**: Sidumo and Another v Rustenburg Platinum Mines and Palluci Home Depot (Pty) Ltd v Herskowits support this interpretation.
Would you like more detailed advice on preparing for your CCMA arbitration?

*. RESPONDENT’S CASE An email from the Applicant to Lwandile Masango “Dear Lwandile On the * April *, I received a batch of COLA letters addressed to a number of employees. This may have been deliberate or non-deliberate disclosure as it was later stated as an error is the subsequent email. On receiving this correspondence, I could not help noticing that my salary is +- *% lesser that the colleagues in the similar bracket as mine. This is a great anomaly. What are the best ways for redress, for Brand South Africa to consider matching my current salary with the rest of other managers in the same level. Please advise. Kind regards”. *. Letter responding to the above email dated * October * read: “Ms Pumeza Ceza Strategic Relationship Manager – Civil Society Dear Ms Ceza RE: RESPONSE TO ALLEGED SALARY DISCREPANCIES Your email dated has * September * bears reference. In response to your email, I would like to affirm that salaries at Brand South Africa are legally determined within the strictest framework of Paterson grading system and a legally binding process of interaction between the incumbent and Brand South Africa as an employer. Such a process is concluded with a legal consent between the employee and employer thereby agreeing to the legally binding contractual terms and conditions, which includes but not limited to a total cost to company, which consists of a monthly salary and company benefits. As an employee of Brand South Africa, you were also subjected to such a process, and ultimately signed and offer of employment, which included a total cost to company that is in line with your Paterson level, which is D3. It is therefore my respectful submission that the information that you are referring to was transmitted erroneously to you, and subsequently a letter of apology was forwarded to you on the * May * explaining the error as indicated in your email. Please note that all employees are subjected to a legally binding contractual obligation to serve the organisation within the strictest parameters of an accepted offer of employment and a salary grade to which they have all consented. Further to the above, your conduct could legally be interpreted as misconduct i.e., “unauthorised possession and/ or disclosure of confidential company information” as quoted in the Disciplinary policy. Please note that you have used unauthorised information to advance your personal interest. In light of the above, I therefore urge you to refrain from using inappropriately acquired information as it may adversely result in violation of the Disciplinary policy. I trust that the above information will meet its desirable outcome. Kind Regards ________________________________________ MS LWANDILE MASENGO DIRECTOR: CORPORATE SERVICES (ACTING) *. Ms Ceza responded to the letter as follows: * October * ATTENTION: Ms Lwandile Masango – Director Corporate Services (Acting) Introduction *. After re-reading your correspondence of * May * and the harsh response of * October *, I felt I must get a legal advice. *. I approached my colleague and alumni who is an advocate for and in the referral profession. He provided an advice without prejudice for the sole purpose of assisting. *. On the basis that this matter maybe amicably resolved between the parties I was advised that it is the role of the authorities consulted to provide assistance and guidance. Issues *. I am advised that, the issues of this matter are crisp and concise as follows: *.* Brand South Africa’s reputational risk; *.* Unfair labour practice; and *.* a right of reply by the employer in acting discriminately to provide reasons for such a conduct. Brand South Africa’s reputational risk *. Without getting into details on this issue and conduct of the employer this flies on the face of the mission and vision of this respected institution nationally and international. *. Looking at where this country comes from and what it is selling this kind of conduct without full reasons but threatening disciplinary based on usage of “unauthorised information to advance personal interest”. *. I am advised that the conduct of the Employer is tantamount to a reputational risk. An employer threatens disciplinary when a legitimate issue is being raised. This is an act of intimidation and abuse of power by the employer. *. As the employee, I did not snoop and sniff around for the information, the information was provided by the institution/ employer irrespective how. Unfair labour practise *. This huge salary discrepancy constitutes unfair labour practice and professional employees like myself taking into consideration of my output performance I fully qualify for “equal pay for work of equal value”. *. These discriminately factors by the employer are based on: performance, potential, responsibility, experience, education, attitude and skills. *. I am advised the facts of this matter are distinguishable to Naidoo & others v Parliament of the Republic of SA, as we are all African ladies of the same qualifications and experiences taking into consideration all the factors stated in point * above. *. The facts of my case are relevant and related to the SASOL CHEMICAL OPERATIONS (PTY) LTD vs CCMA and Others if you look at the factors as stated in point * above. The right to be provided reasons *. South Africa is a constitutional state, as the employer has sold it to the stakeholders as such. *. I am advised that we are no longer slaves of parliamentary sovereignty where word of the superior is an order of the day and cannot be questioned. *. The employer is bound as the constitutional state to provide reasons in detail for the manner it has conducted itself and why my fellow employees on the same salary and similar workload and responsibilities are remunerated much better than myself. *. It is to my knowledge that Brand South Africa embarked in a Job Grading and Job Evaluation exercise and I am certain that my concerns are valid. I can confidently confirm that other employees are in the same level, experience and qualification as required by the job. *. Further, the employer is bound to ensure my concerns are addressed amicable and to provide redress in the matter. Regards Pumeza Ceza Strategic Relationship Manager: Civil Society *. Chairperson: Thank you, Ms Mpumi. With all that said, I see that there are no clarity seeking questions. Can I ask the Employer to present their case and ask if there are any witnesses so that I can record their details? Initiator: There are no witnesses, I have submitted the necessary documents to collaborate. If I can be allowed to project the documents. Chairperson: Thank you, you may proceed. Initiator: …If you can just indulge me Chair to just project the opening statement and I am happy to share this as well post the meeting. *. Initiator: If we go through each charge: Charge number one – Gross Misconduct: Insubordination Ms Ceza deliberately refused to obey a written instruction contained in letters sent to her on * October *, Annexure C in the documents submitted (hereinafter referred to as the “* October letter”) by Brand South Africa’s (Ms Lwandile Masango) wherein you were strictly instructed to refrain from using unauthorised Brand South Africa information against the organisation. The * October letter was in response to an email from Ms Ceza, Annexure B (dated * September * in which she cited stating the following: • On the * April *, she received COLA letters addressed to a number of employees; • Ms Ceza noted that receipt of the letters, in her words ‘may have been a deliberate or non-deliberate disclosure as it was later stated as an error is the subsequent email’; • Ms Ceza proceeded to state that she ‘could not help but noticing that my (her) salary is +- *% lesser that the colleagues in the similar bracket’ as herself. • Ms Ceza enquired about ways of redress, for Brand South Africa to match my (her) salary. *. After receiving a clear instruction on the * October letter, where she was urged to refrain from using inappropriately acquired information as it may adversely result in violation of the Disciplinary policy, Ms Ceza continued to communicate with Ms Lwandile Masango on the matter in a letter dated * October *, Annexure D (hereinafter referred to as the * October letter). In her introduction to the * October letter, Ms Ceza indicated that she sought legal advice on the matter that she had initially raised. The organisation considers this to be an act of Gross Misconduct: Insubordination as Ms Ceza ignored a clear written instruction stating that she is in possession of unauthorized information and must refrain from using that information to advance her personal matters. This is stated in the * October letter I just read. That is my submission in relation to the first charge Chair. Ms Ceza was duly responded to, contrary to what she shared with us but continued to engage Ms Masango. *. Charge two- Gross misconduct: unauthorised possession of Brand South Africa and employees’ information. It is a separate charge Chair and from the above that I have just recently stated, she was aware that the letters above were not addressed to her. To the point where, she noted and calculated that her salary is approximately *% different than the people (according to her) in a similar bracket. The email that Ms Ceza refers to was sent on the 30th of April *(Annexure B Email correspondence) and she raised the matter through an email on * September *. It is clear to the organisation that Ms Ceza deliberately withheld and was in the unauthorised possession of private, confidential, personal information, which contains other employees’ salary information. This is a transgression of the organisational ‘confidential undertaking’ which was signed by Ms Ceza on * February * (Annexure E). *. Clause *.* clearly states that “I will destroy information that comes into my possession without proper authorisation by the person to whom such information belongs, unless my possession of such information is to enable me to do my duties”. It further states that, “I understand that any unauthorised possession or disclosure of private and confidential information may result in disciplinary action being taken against me by Brand South Africa.” This is considered as an act of Gross Misconduct by the organisation. *. Charge number three – Gross misconduct: unauthorised disclosure of Brand South Africa’s employee information to a third party. In that on * October * letter, Ms Ceza indicated that she shared privileged Brand South Africa information with a third party, being her “colleague and alumni who is an advocate” without authorisation by Brand South Africa. This disclosure of Brand South Africa’s information to a third party is considered as an act of gross misconduct by the organisation as a member of staff you showed no integrity to the protection of information of Brand South Africa and literally undermined all Brand South Africa’s internal processes and shared privileged Brand South Africa information with a third party who is your colleague and alumni who is an advocate without authorisation from Brand South Africa. *. Charge number four – Breach of duty of good faith towards the Employer Ms Ceza did not use the correct channels when requesting personal and private information which she sought and implied that the unauthorised personal and confidential information that she is in possession of: • May pose a reputational risk to Brand South Africa’s reputation – which is in violation of the procedures set out in Brand SA’s PAIA Manual; and • That Brand South Africa is acting discriminately. *. The * October letter responded to Ms Ceza in full. The letter outlined the procedures and policies which are used in determining salaries. The * October letter is considered a breach of good faith towards the organisation in that Ms Ceza as part of Brand SA’s management should have known better and destroy the confidential information which she knew was not meant for her. Instead, she maliciously went through the information and further intended to use it against the employer. The act is also in violation of Brand SA’s PAIA Manual (Annexure J) *. Charge number five – Violation of Brand South Africa’s code of conduct Ms Caze’s overall conduct as outlined in paragraph *.*.to paragraph *.* is a violation of clause *(f) (which is Annexure F) which strictly stipulates that an employee “must not furnish information without special permission from Brand South Africa to anybody regarding the confidential business or activities of Brand South Africa, or in connection with any factor which had become known in the course of duties performed, except if bound to do so by law.” In the * October letter, Ms Ceza went against this clause by communicating confidential Brand South Africa information and informing the organisation of such with “a colleague and alumni who is an advocate,” a third party who clearly does not work for Brand South Africa without the consent and authorisation of Brand SA management (See Annexure D). *. I would like to add before I conclude Chair just in response to the issue raised by Ms Ceza. One act can result in multiple consequences. One act may transgress a lot of different policies, and the organisation has a duty to consider all of those and I will conclude here. I conclude here Chair. *. Chairperson: Thank you, Ms Mpumi, for the presentation of your case. I have two follow up questions before I ask Ms Ceza to ask any questions necessary. In terms of the letter Ms Ceza wrote, I think it is Annexure H. I note that you have read some parts of the letter but just for the record can you please just read what is contained in the letter. Under charge number four, there was a violation of the PAIA Manual, can you just please explain to us what that violation was? Initiator: Thank you Chair, before I proceed, I would like to humble request that Mr Hasheni’s camera be on. There have already been enough questions regarding his presence in the Hearing, so I do not want any further doubts. So, if the Chair can indulge me

Thank you for sharing the detailed information. Based on what you've provided, it sounds like you're dealing with a complex workplace dispute involving salary discrepancies and potential misconduct. Here are some general points to consider:
- **Unfair Labour Practices**: If you believe there is an unfair labour practice, you can lodge a complaint with the CCMA.
- **Confidential Information**: It’s crucial to follow protocols regarding confidential information to avoid disciplinary action.
- **Legal Representation**: Given the complexity, consider seeking detailed legal advice from a qualified lawyer.
Would you like more specific information on preparing for a CCMA arbitration or guidance on unfair labour practices?

im just providing sequence and separate portions presented on closing arguments PROCEDURAL FAIRNESS OF DISMISSAL FOR MISCONDUCT Section *(*)(b) of the Labour Relations Act * of * “the LRA” as amended, requires that a dismissal for a misconduct must be effected in accordance with a fair procedure. Normally the employer should conduct an investigation to determine whether there are grounds for dismissal. *. In terms of the Disciplinary Code and Procedure of Brand South Africa “the Employer” investigation is very important in order to establish whether there is adequate proof to suggest that offence has been committed before taking the appropriate disciplinary action. *. This exhortation can be gleaned from Page * Paragraph *.* “ *.*. The Disciplinary Enquiry *.*.* Investigation *.*.*.* All cases that are reported will be investigated. *.*.*.* The authorised official must investigate whether there is adequate proof to suggest that the offence has been committed before taking the appropriate disciplinary action. A statement must be obtained from the employee concerned. *.*.*. Proceedings during the Disciplinary Hearing *.*.*.* The essential elements for a fair enquiry include the following: •An impartial chairperson; •Clear description of the alleged misconduct; •Sufficient time for the employee to prepare (at last * hours); •The right of the employee to be represented by a fellow employee, or, at their own discretion, by a legal representative; •The right of an employee to have an interpreter present if necessary; •An opportunity for the parties to state their cases fully; •The right of each party to call and cross examine each other’s witnesses; •Presentation of evidence in mitigation where a guilty verdict has been pronounced; •Written decision with reasons; and •Right of appeal. *.*.*.*The participants and their roles in the enquiry are as follows: a)The Chairperson The Chairperson of the hearing will be an unbiased (not conflicted) manager of higher status than the employee. Brand South Africa may in its own discretion decide on appointment of an outside unbiased chairperson. The role of the chairperson shall be to: •Check that all aspects of the Chairperson’s Check list have been complied with. •Ensure that Brand South Africa has given the employee a notice of disciplinary enquiry and copies of relevant documents within the relevant time periods. •Conduct the hearing and ensure that the case minutes of the proceedings are kept. •If the chairperson finds that the employee committed the alleged act/s of misconduct and that there are valid grounds for dismissal, he or she shall first consider and, if appropriate, take any evidence in mitigation into account before recommending an appropriate sanction. •Within * (seven) working days of the conclusion of the hearing, prepare and deliver his or her written findings and reasons for the findings as well as his or her recommendation on sanction to the Chief Executive Officer. The Chairperson may reasonably extend this time period depending on the nature and also based on other justifiable reasons, in which case he/she will notify the parties involved accordingly. •The Chief Executive Officer shall evaluate the findings and recommendation on sanction where after he or she may after evaluation of the facts and consideration of the employee’s personal file, confirm or overturn the sanction as recommended by the Chairperson. •The employee shall be informed in writing of the decision of the Chief Executive Officer. b)The initiator •The role of the initiator shall be to present Brand South Africa’s case at the enquiry. c)The Employee and /or Employer Representative •The employee’s role shall be to state his or her case and cross-examine the line manager and other company witnesses. If the employee has nominated a representative the representative will conduct his or her case. •The employee’s representative shall be a fellow employee nominated by the employee or legal representative, as the case may be, to represent the employee at the enquiry. The employee representative’s role shall be to present the employee’s case and cross-examine Brand South Africa witnesses. d) Witnesses Witnesses shall be persons called to give evidence at the enquiry by either Brand South Africa’s representative or the employee’s representative. e) Legal Representation Outside legal representation may be allowed after evaluation of the nature and complexity of the case. An employee who requests legal representation shall do so at his / her costs. *.*.*.* In considering a case for dismissal the chairperson should take the following factors into account before any decision to dismiss: a) Does the rule which the employee is alleged to have breached, exist? b) Did the employee have knowledge of the rule? c) Is the rule legitimate? d) Did the employee break the rule (balance of probabilities)? e) Is the sanction appropriate in the context of the facts of the case, the Code and evidence in mitigation? f) Has there been consistency in application of the rule in similar cases in the past? g) In circumstances where there are fiduciary duties, the above factors may not all apply.”

Thank you for sharing the detailed information. Based on the procedural fairness required for dismissal due to misconduct as per Section *(*)(b) of the Labour Relations Act * of *, here are the key points:
- **Fair Procedure**: Investigations are crucial to determine grounds for dismissal.
- **Disciplinary Enquiry Essentials**:
- Impartial chairperson
- Clear misconduct description
- Adequate preparation time (at least * hours)
- Right to representation and interpreter
- Opportunity to present cases fully
- Right to call and cross-examine witnesses
- Written decision with reasons
- Right of appeal
Would you like further assistance or details on a specific aspect of this process?

DOCUMENTARY EVIDENCE Documents are considered and equated as hearsay evidence. Two (*) important rules apply when documents are introduced into evidence. Evidence is required to prove that a document is what it purports to be, for example, a witness is called to testify that a document is in fact the minutes of a disciplinary hearing, and the contents of a document must be proved, that is, that the contents are accurate. *. DOCUMENTARY EVIDENCE Unless it is admitted by the opponent. The authenticity of the document must be proven. The truth of the contents of the documents must be proven through a witness. The contents of the document must also be relevant and admissible. *. How will hearsay evidence be admitted in the proceedings? Before we can determine if hearsay evidence can be used during the proceedings, it is important to know what the meaning of hearsay evidence is: *. Hearsay evidence Means evidence, whether oral or in writing the probative value of which depends upon the credibility of any person other than the person giving such evidence. In simplest terms, what does this actually mean, what this means is that hearsay evidence occurs when a witness has not personally experienced or observed events but gives an account of what somebody else told him / her about what happened. *. Documents, as indicated supra, constitute hearsay evidence. *. Hearsay evidence should be treated with caution because it may be unreliable and uncreditworthy or incredible. The originator of the information is not present to be cross-examined and the witness giving an account of what he or she was told may be exaggerating or lying or may have misunderstood a statement. *. WHAT DOES THE LAW ABOUT HEARSAY EVIDENCE It is also very important to know what the law says about hearsay evidence. In brief, Section * of the Law of Evidence Amendment Act * of * (“LEAA”) provides as follows: - Section * Hearsay evidence (*) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings unless – a. Each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings. b. The person upon whose credibility the probative value of such evidence depends, himself or herself testifies at such proceedings, or c. The court having regard to several other factors. (*) The provisions of subsection (*) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay. (*) Hearsay evidence may be provisionally admitted in terms of subsection (*)(b) if the court is informed that the person upon whose credibility the probative value depends, will himself testify in such proceedings. Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account, unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (*) or is admitted by the court in terms of paragraph (c) of that subsection. *. What our courts say with regard to the admission of hearsay evidence in recent cases? The recent Labour Appeal Court judgment of Exxora Coal (PTY) v Chipana and Others (LAC), (unreported case No JA161/*, *-*-*) will give light on the subject. In that case, at the disciplinary hearing the employer relied on the hearsay evidence of forensic investigators, which was also presented to the Commissioner when the matter was referred for arbitration. The arbitrator ruled the hearsay inadmissible and having found “not a shred” of direct or corroborative evidence to prove the employee’s guilt, reinstated him. The Labour Court dismissed a review application. The appellant contended the Labour Court had erred by failing to have proper regard to the Law of Evidence Amendment Act * of *(“LEAA”) and the totality of the evidence. The court held that the court a quo had erred in several aspects. *. If the Commissioner has based his decision to exclude the hearsay evidence based on the ground that where there is no agreement on the submission of hearsay evidence, it may still be admitted where it is in the interest of justice to do so. *. This provision had entirely changed the approach to hearsay evidence. Arbitrators should explain the contents of section * to lay parties and should rule on the admissibility of hearsay evidence as soon as possible. The court held that in this case the Commissioner’s ruling on the admissibility of the hearsay evidence case came too late. *. The Employer’s representative had alerted parties to the fact that hearsay evidence would be led and had done so without objection from the Commissioner or the employee who was legally represented. The employee had attempted to answer the allegations in the complainants affidavits when he testified and the employer’s representative had cited authorities on hearsay evidence in her closing arguments. *. The Commissioner had made no ruling on the hearsay evidence until writing the award. This was consistent with duty to determine the dispute fairly and quickly. The employee had been drawn into the debate on the hearsay evidence , risking a finding that he had tactically consented to its submission. *. And the employer proceeded not knowing whether the hearsay evidence would be admitted. While both parties could be criticized for not requesting a ruling, their failure to do that was tempered by the fact that these were not court proceedings and the parties were not necessarily legally trained. *. A reasonable Commissioner would not only have ensured that he knew the law on the issue, but also, that he dealt with it promptly. This reasonableness could not be cured on review, as the Labour Court attempted to do. *. While the judgment might be requiring a clement of formality in arbitration proceedings, this was preferable to allowing fairness. The Labour Court had, accordingly erred by finding that there was no basis for interfering with the award. *. The appeal was upheld and the matter was remitted to the CCMA to be heard by another Commissioner. Louw v Commission for Conciliation Mediation and Arbitration and Others (*) * LC1.*.* also reported at [*] * BLLR * (LC) where the court found that the Commissioner dealing with the hearsay evidence rule, did not deal with it appropriately and to reflect her awareness of the onus of proof in her evaluation of the evidence before her, the Commissioner committed a gross irregularity rendering the award susceptible to review. *. It is clear from the jurisprudence that the implementation and evaluation of hearsay evidence is a complex one and commissioners should not routinely admit or reject the evidence without cautiously applying the provisions of section3 in determining the admission or rejection of such evidence. *. Section * of the LEAA provided that where there is no agreement on the admission of hearsay evidence, it may still be admitted where it is in the interest of justice to do so. *. Toku v Sekhamisa and Others (JR */ * also reported at [*] ZALCJHB *; also reported at * 6BLLR * (LC). *. It is further important for parties to address the Commissioner on the fact that hearsay evidence will be led and request a ruling on the admissibility thereof as soon as possible and not only on his award. *. As far as possible, parties should ensure that witnesses are present during the proceeding as there is no guarantees that your hearsay evidence will be admitted.

Thank you for providing the detailed information. Here are the key points regarding documentary evidence and hearsay in South Africa:
- **Documentary Evidence**:
- Must prove authenticity.
- Contents must be accurate, relevant, and admissible.
- **Hearsay Evidence (Section *, LEAA)**:
- Generally inadmissible unless:
- Agreed by all parties.
- The person on whose credibility the evidence depends testifies.
- Admitted by the court considering various factors.
Would you like more information on handling hearsay evidence in your specific case?

What we are arguing here is that the Commissioner did not rule whether he was admitting the hearsay evidence. By law he must first rule whether he is considering it and not only rely on the award to confirm he is admitting it

Understood, here are the key points regarding your argument:
- **Commissioner's Duty**:
- The Commissioner must rule on the admissibility of hearsay evidence during the proceedings.
- This ruling cannot be deferred until the award is made.
- **Legal Basis**:
- Section * of the Law of Evidence Amendment Act * of * specifies the conditions under which hearsay evidence can be admitted.

Would you like further clarification on any specific aspect of this process?

Is this a correct argument? What must the Commissioner do when faced with this?

Yes, your argument appears correct based on the requirements of South African law. Here is what the Commissioner must do when faced with hearsay evidence:

Key Points:
- **Legal Obligation**: The Commissioner must rule on the admissibility of hearsay evidence during the proceedings, not just in the award.
- **Section *, LEAA**: The Commissioner needs to consider the conditions outlined in Section * of the Law of Evidence Amendment Act * of *:
- **Agreement**: If all parties agree to the hearsay evidence being admitted.
- **Testimony**: If the person upon whose credibility the evidence depends testifies.
- **Interest of Justice**: If the court, considering various factors, finds it in the interest of justice to admit the hearsay evidence.

Steps for the Commissioner:
*. **Evaluate the Evidence**: Determine if the hearsay evidence meets any of the conditions for admissibility.
*. **Make a Ruling**: Clearly state whether the hearsay evidence is admitted or excluded during the proceedings.
*. **Record the Decision**: Document the ruling and the reasons for it in the proceedings record.
Would you like more detailed advice on how to present this argument effectively at your hearing?

What is an exception to this rule?

In South African law, exceptions to the general rule prohibiting the admission of hearsay evidence might include:
- **Res Gestae**: Statements made spontaneously by a person at the time of an event, which form part of the event itself.
- **Dying Declarations**: Statements made by a person believing they are about to die, concerning the cause or circumstances of their death.
- **Public Records and Documents**: Official records or documents that are considered reliable.
- **Business Records**: Regularly kept records in the course of business, provided certain conditions are met.
Would you like more information on any of these exceptions?

Yes, the Ccma proceedings have concluded and the Commissioner has not ruled. He allowed the manager who was not called during the hearing to come and testify

Thank you for sharing that. It's essential to handle such situations properly. Here are the steps and exceptions that may apply:

Key Points:
- **Commissioner's Duty**:
- The Commissioner must rule on the admissibility of hearsay evidence during the proceedings.
- **Exceptions to Hearsay Rule**:
- **Res Gestae**: Spontaneous statements forming part of the event.
- **Dying Declarations**: Statements made by a person believing they are about to die.
- **Public Records and Documents**: Official and reliable records.
- **Business Records**: Regularly kept records in the course of business.

Steps for the Commissioner:
*. **Evaluate the Evidence**: Determine if the hearsay evidence meets any exceptions or conditions for admissibility.
*. **Make a Ruling**: Clearly state whether the hearsay evidence is admitted or excluded during the proceedings.
*. **Record the Decision**: Document the ruling and the reasons for it in the proceedings record.
Would you like more detailed advice on how to present this argument effectively at your hearing?

so, he has already missed this step. What could be his defense?

If the Commissioner missed the step of ruling on the admissibility of hearsay evidence during the proceedings, here are some potential defenses that could be raised:

Key Points:
- **Procedural Irregularity**: Highlight the Commissioner's failure to rule on the admissibility of hearsay evidence during the proceedings, which is a procedural irregularity.
- **Prejudice**: Argue that the failure to rule on hearsay evidence prejudiced your ability to prepare and present your case effectively.
- **Request for Review**: You may seek a review of the arbitration award on the grounds of procedural unfairness or gross irregularity.

Steps to Take:
*. **Document the Irregularity**: Clearly document the instances where the Commissioner failed to rule on the hearsay evidence.
*. **Legal Precedent**: Cite relevant case law, such as Exxora Coal (PTY) v Chipana, to support your argument that the Commissioner should have ruled on the hearsay evidence.
*. **Request Review or Appeal**: File for a review or appeal of the arbitration award, highlighting the procedural irregularity and its impact on the fairness of the proceedings.
Would you like more specific advice on how to file for a review or appeal?

How was he supposed to rule?

The Commissioner should have followed these steps to rule on the admissibility of hearsay evidence:

Steps for Ruling on Hearsay Evidence:
*. **Identify the Hearsay Evidence**: Clearly identify the evidence in question as hearsay.
*. **Evaluate Conditions for Admissibility**:
- **Agreement**: Verify if all parties agree to the hearsay evidence being admitted.
- **Credibility Testimony**: Determine if the person whose credibility the evidence depends on will testify.
- **Interest of Justice**: Assess if admitting the hearsay evidence serves the interest of justice, considering factors like the nature of the evidence and its importance to the case.
*. **Make a Ruling**:
- If the evidence meets any of the conditions, the Commissioner should admit the hearsay evidence.
- If the evidence does not meet the conditions, the Commissioner should exclude it.
*. **Document the Decision**:
- Clearly state the ruling on the record during the proceedings.
- Provide reasons for the decision to admit or exclude the hearsay evidence.
- Ensure the ruling and reasons are included in the written record of the proceedings.

Example Ruling:
- **Admitting Hearsay Evidence**: "After considering

*. PROCEDURAL FAIRNESS OF A DISMISSAL FOR MISCONDUCT Section *(*)(b) of the LRA requires that a dismissal for misconduct must be effected in accordance with a fair procedure. A fair procedure entails a fair disciplinary investigation. During the disciplinary hearing the employee will have a chance to state his/ her side of the story. This principle is known in terms of the common law as the audi alterem partem rule, Item * of the Code provides a number of guidelines of a fair investigation. These are: *. Fair procedure (*) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or a fellow employee. After the enquiry the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision. (*) …… (*) If the employee is dismissed the employee should be given a reason for dismissal and reminded of any rights to refer the matter to a Council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. (*) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. *. However, these are guidelines which cannot substitute the Employer’s disciplinary code, whose excerpts / provisions are rehashed below. *. In so far as the procedure is concerned, it is crystal clear that it was severely and flagrantly flouted wholly, very much to the huge prejudice of the Applicant. Why so, it is so because the Code of the Respondent under *.*.*.* requires all cases that are reported to be investigated. In terms of clause *.*.*.* which is couched in a mandatory perspective in that the authorised official (in this instance) Ms Mabuza, must investigate whether there is adequate proof to suggest that the offence has been committed before taking the appropriate disciplinary action. *. Furthermore, a statement must be obtained from the employee (in this instance) Pumeza Ceza, the Applicant. What this means is that proper and fair procedure of investigation precedes the invocation of any king of averments that might be levelled against the employee. This is quite reasonable and fair, however, the authorised official elected to undermine this laudable clause to the compromise and detriment of the employee’s right to the fair dealings with its employer and fair labour practices as envisaged in the * Constitution in Section *(*) and the statutory provisions giving effect thereto. *. I do not propose to canvass all the clauses found under this disciplinary code, at this stage save to state categorically that chairperson was not an independent and impartial person in his capacity as a presiding officer. This, aspect of his trait, I must add, culminated to a situation where the Applicant’s right to state her case, at the disciplinary hearing, in response to the charges was hindered, shattered and/ or completely and indeed absolutely thwarted unceremoniously. *. How the chair was captured, conflicted and absolutely compromised. Under normal circumstances, the appointment of a chairperson falls in the domain of the employer to apply discipline as a corrective measure to its employees. When the chair took a stand, in particular, under cross examination, he revealed that he was approached by one Mr Lwandile Hasheni, in his office, to be a chairperson in the Applicant’s disciplinary hearing. As if that were not enough, the chair had sponsored voluntarily, a further shocking revelation that Mr Hasheni informed him that the disciplinary hearing was an internal process, and that external legal representation would not be allowed. *. In addition thereto, the chair remembered and explained, that there would be no external legal representative, was also indicated in the charge sheet as such. Truly, the chairperson’s testimony in this regard was *% correct. The correctness can be easily deciphered on the CHARGE SHEET starting from page * of bundle “A” but the issue of interest of reference rests on page * below YOUR RIGHTS. “You are hereby informed that you have a right to represent yourself or to be represented at the said hearing by an employee of Brand South Africa (not an external representative) who may assist you in, inter alia, the following…” *. On page *, the person who appended his signature on the charge sheet was none other than Lwandile Hasheni underneath his name bears EMPLOYEE RELATIONS. This is telling. *. In his evidence, the chair made plain and clear that Mpumi was the one who told him that he wrote “not external representative in the charge sheet”. This assertion is buttressed by the records in the arbitration process and them claiming same, both of them, in their capacity as the employer. *. On the issue of appointment letter, the chair confirmed, just a verbal appointment, there was no letter of appointment for his role as the chairperson. It is, without any shred of doubt, correct to conclude, the fact that the chairperson had consciously accepted and reconciled himself with the fact that there would be no external legal representative would be allowed in that disciplinary hearing. *. In the scheme of things, as they stand in this matter, we contend, with the greatest due respect, Hasheni and Mpumi Mabuza took a conscious predetermined stance to exclude an external legal representative and further duly influenced the chairperson long before the disciplinary hearing. *. How was the chair appointed by an Employee Relations Officer is somewhat perplexing, unprecedented and bizarre in the extreme. The decision of the exclusion of a legal representative was made by Hasheni and Mpumi prior to the hearing and before it was brought to the attention of the chair in the form of an application thereof was tantamount to the usurpation of the chairperson role or function. *. Most importantly, the effect of this conduct amounted to an undesirable act of a chairperson who cannot truly gainsay that his decision not to allow an external legal representative was without due influence. The chair, as we indicated earlier, had reconciled himself with the position of Hasheni and Mpumi Mabuza because he was not just complicit but was actively endorsing the exclusion of a legal representative being in cahoots with the Employer. Thus, the extent to which he was pandering to the whims of the Employer. He was undisputably not independent and impartial which is in conflict with a fair procedure as envisaged in the Code. See page * Applicant’s Bundle “A” “Transcript: Hearing of the * November * CHAIRPERSON: Okay recording done. Good morning, everyone. Good morning, good morning. OK good morning I see we have, what do I have here trying to check the participants list. I see, please correct me I see we have a representative from Masilo Maake attorneys good morning Sir. Hello am I audible? MEMBERS: Chairperson I can hear you loud and clear from my side, I can also hear you chair. CHAIRPERSON: OK welcome everyone, my name is Tebogo Kgaukguri and I have been… OK I see OK no I see that the person that was on the meeting has just left the meeting so I take it to that we can we can continue. My name is Tebogo Kgaukguri, and I have been asked to be the chairperson of this disciplinary inquiry. Let me just admit them, OK good morning Sir can you hear us? Hello. Hello. It looks like he can’t hear you chair. Mr Masilo are you able to hear us? He can’t hear us. Not too sure whether the issue is there. Facilitator: Look chairperson whilst Mr. Make is here I just want to state categorically clear here as the HR business partner, I have been engaging with Mr. Make and I’ve made it very clear at this point that this is an internal matter. I’m just stating it so that the chairperson may know that this is an internal matter and therefore I’m not sure if chairperson you are going to talk to that issue, or must I perhaps allow you to make a ruling in terms of that. I will be will be guided by you chair. CHAIRPERSON: OK. So I understand that Mr Masilo will be, he is the intended representative of the employee. Am I correct in saying so? Yes, you are correct chair. OK, alright so as I’m worried that he can’t respond, I don’t know if he can hear us. I do not know what’s happening with him, we cannot engage with him at all. Mr Masilo Maake: Morning lady and gentlemen, I can hear you. Again thank you thank you so you can take it CHAIRPERSON: OK thank you uh but I’ll I’ll also note that the employee is not present I’m not sure if the employee is in the same area with you Mr Masilo. Employee’s Attorney: No the employee is not with me because she advises me that she has submitted a medical certificate because she's been booked leave due to high pressure and stress, that’s the information that I have, and I’m told that medical certificate has been sent to her supervisor. CHAIRPERSON: OK. Miss Mpumi can I please have a copy of the medical certificate? I haven’t seen that so we can have a look at it. Initiator: Noted chair, I will attach it in the chat, just also would like to add that we sent a communication to Miss Ceza requesting that she ensure that her doctor articulates and states clearly that she’s not capable of participating in a virtual meeting and we have not received that information as yet, but let me attach the medical certificate. CHAIRPERSON: OK thank you. CHAIRPERSON: Alright so just going back then to the normal proceedings by way of introduction my name is Tebogo Kgaukguri, I’ve been asked to be the chairperson of this disciplinary inquiry. Can I please just ask everyone on the call to then introduce themselves before we then proceed. Facilitator: My name is Lwandile Hasheni, I’m the HR business partner managing this process. Thank you. Initiator: My name is Mpumi Mabuza and I am the general manager, stakeholder relations and I am the initiator of the charges. Employee’ attorney: I am Mr Maake, I’m an attorney in Pretoria, I represent the applicant. CHAIRPERSON: Thank you. According to my understanding when I was asked to be the chairperson I was then informed that this is going to be an internal matter which is going to be handled within Brand South Africa, I do note that Mr Masilo is here representing the applicant. May I request that because I have not received any submission from the applicant and from the employer in terms of us having a legal representative? Can I request that the employee or the applicant then do the submission in writing and then send that through to me as the chairperson? Similar to the employer representative that I have those submissions for then for me to be able to then apply myself and then be able to consider what would have been submitted in terms of having legal representation for the employee. Facilitator: Chair, can I just find out how much time are you going to need in in terms of that, you know that submission? How much time are you gonna need? Are you gonna need an hour? Or is it gonna be? When are we going to reconvene? CHAIRPERSON: I just ask from the employer and the employee as to how much time do they need in terms of in terms of preparing those submissions and then I will be guided by that if it is feasible to be done within today’s business, then I will then consider that. Can I have an indication from the employer as to how long it will take? Facilitator: Thank you Chair. Chair I am comfortable as an employer that the process can reconvene tomorrow. It's OK the application can be submitted today and then the chairperson will be given the rest of the day to consider those representations and that the matter will then reconvene tomorrow, thank you. CHAIRPERSON: OK thank you thank you for that guide. Mr Masilo would today be enough time for the submission to be submitted from the applicant’s side? Employee’s Attorney: No chair, but there’s just one issue that I need clarity on. My understanding when Mpumi was addressing you was that she’s the initiator and as far as I understand these processes it is the initiator and the applicant or their respective representatives who needs to address you on these issues. So, I’m not sure if you have two representatives, is it Mr Hasheni and Ms Mpumi or is it Mpumi only who’s representing the organization. Chairperson: Okay Mpumi I see your hand is up. Facilitator: Chairperson can I just come in quickly so that so that we are guided appropriately in terms of these processes? As already has been indicated these are internal processes and already we are going to be bogged down into discussing our internal processes to an external representative. Now chair from a perspective of an employer we’ve made our position very clear in terms of the charge sheet that was issued. The charge sheet that was issued chair made it very clear that external representation would not be allowed, however it is now the process is now at the mercy of the chairperson. I agree fully that it is at the mercy of the chairperson, now I am saying Chair I’ve been entrusted with the responsibility to manage this process and therefore I’m saying that the chairperson does make a indication that he shall allow representations to be made by the applicant’s representative or by the applicant to consider legal representation, and that the employer must do the same. So chair can we just stick to that at this point? Can we stick to the fact that you will allow the presentations be made in that regard so that we do not discuss any other issues at this point, thank you chair. CHAIRPERSON: Thank you for that Mr Hasheni. Miss Mpumi, I saw your hand up. Initiator: Thank you chair I’m comfortable with Mr Hasheni’s contribution to this topic. It is an internal disciplinary hearing, if the chair allows us to make our individual submission, I do indeed represent the employer I am the initiator, and I am comfortable with the time frame that is being guided by the HR business partner. Thank you CHAIRPERSON: OK thank you so much, with that said I would then allow the two parties to then do the submission if I could have the submission set list by *:* PM the latest today so that I can then be able to go through them and then we shall then reconvene tomorrow at *:* AM for us then to give the the outcome of the submissions and then we would immediately then proceed thereafter. Employee’s Attorney: Chair, can I just make my input here? Because when I made an inquiry about Mr Hasheni and Miss Mpumi they don’t want to address you on other things. All I wanted to say is and when you invited me to talk the first thing I said is that I don’t think making the submissions today is possible. You must bear in mind that we are just coming out from a court process, I’m not sure if you are aware that were in the Labour Court this morning, the Labour Court matters just adjourned not long ago. I need to consult with my client for the purposes of this application and she has already indicated to you that she’s not feeling well, she’s already indicated by submitting a medical certificate that she’s not feeling well so the appropriate thing here would be for the matter to be postponed to a mutually stable date. We will workout the timelines that are realistic and that can accommodate all of us. I don’t think chair in your position and you need to take sides in terms of being dictated by all of us in terms of how you are going to handle your responsibilities, your responsibilities must be guided by fairness to all of the parties. So, in this regard then my request to you is that let’s make a realistic assessment, this matter was said last Friday it was postponed today. I don’t see why it should be postponed by mere few hours when there are issues that are fundamentally important for the applicant to be decided on. So, my proposal to you chair what was going to be that perhaps we should agree on a date early next week we can make those submissions to you on Monday, and then you make your decision and then we can reconvene on Monday or Tuesday or Wednesday to hear your decision. I think tomorrow is just too premature and obviously as legal practitioners we have other obligations that are normally taken into account before a decision on hearings are taken, that is my submission chair. CHAIRPERSON: Thank you for that Mr Maake, I’ve just been quiet I was going through the while you were speaking I was going through the sick note that has been submitted. I do take note that as indicated before it is not stating whether the employee cannot be able to attend the virtual session or so but it does however indicate that the employee has been booked off from the 3rd until tomorrow. So, I would then make a ruling, you know it would have been much easier if the employee was here because as I indicated that we this was just going to be a submission that I seek legal representation and we were expecting that the employee would have made the submissions themselves. So I do consider that, I am going for the date of next Tuesday which would be the 9th at the same time *:* o’clock in the morning and we then extended the date for the submissions to be made available to myself by Monday so that I can then be able to go through them, and then we can then reconvene on the matter and then give the outcome of both submissions as to what is the position of the chairperson and that going forward with the with enquiry. Employee’s Attorney: Thank you chair. CHAIRPERSON:Thank you. Initiator: Chairperson is there a time on Monday? CHAIRPERSON: Yes, if I could have it at least by let’s make it *:* o’clock Monday so that I can have those submissions and then it allows me some time as well for me to be able to go through them. Employee’s Attorney: Chair, perhaps the last thing from my side is are you on this same level as the applicant or is your rank higher than that of the applicant? These are fundamental issues in terms of the dismal code. Facilitator: Chair, chair can I just quickly come in here and I’ve said this. Chairperson you are entertaining issues that are internal issues, issues that are not supposed to be entertained at this level. The only issue that we need to focus on at this point chairperson is the whether the chairperson is amenable to accepting representations in terms of legal representation, that’s all chair. We are not going to sit here and continue as if the hearing has started. The hearing has not started the external legal representative already is making representations. Chairperson I move a motion of closing this meeting until representations are made in terms of application for legal representation thank you. Employee’s Attorney: Chair can I just say the following? You are in a position where you have to be fair and impartial to all sides and then I don’t want either myself or Mr Hasheni to articulate matters that are going to compromise your integrity in terms of how you need to handle this matter. This calls then that need to be made in this process need to be made by you and by you alone. All I was asking is that there’s a simple question that I asked and these are fundamental issues that are dealt with before the hearing starts, right. In a normal hearing situation, you will know who is who, who appointed who and all of those things. These are issues that are normally managed even before you get actually into the actual hearing itself, so these issues were supposed to have been canvassed between myself or the employee and the employer party right and but they were not. So I’m just asking this, I don’t think that this is an issue where the statements that have been made are justified, should be made and I’m just iterating that I’m asking you to cease this process so that neither myself nor Mr Hasheni must be seen to be dictating to you how you should handle your problems because if this thing, this issue will have profound implications for the matter going forward if you are not being seen to be acting partially, and you allow either myself or Mr Hasheni to dictate you or you should enjoy your job. Thank you Facilitator: Chairperson with all due respect once more before you say anything I’m gonna say it again. The integrity of this process must be kept intact, this is an internal process and already we have entertained an external legal representative, already and he is participating in these proceedings. I am not even to sure how he even got him through participating in the first place so then chair by virtue of you having allowed him to speak, OK I think the only issue that we should have focused on is on him making legal I mean an application and that’s it not and not any other issue. Chair if you are going to entertain any other issue it will then mean that you have waived any right that you have pertaining to his application, so chair can we please focus on the application and the representations that he needs to make not any other issue that he will raise not at this point. It is indeed again I repeat it is an internal matter not an external matter, thank you chair thank you Mr. Chairman. CHAIRPERSON: Thank you, Mr Hasheni thank, you Mr Masilo for making your submissions. As indicated before, that the request here is very simple that I seek for the Employee and Employer to make submissions that the Employee seeks legal representation and as indicated, this would have been ideal that the Employee do this in person, but I understand however, that the Employee is off sick. I do then rule that we will then reconvene on the agreed date of the * November *, this being a Tuesday at * o'clock and if I could then have those submissions by * o'clock in the afternoon on Monday, or earlier than that it will be greatly appreciated. So, with all other concerns that are there Mr Masilo I believe that the Employee has the right to ask both questions as and when we proceed with the Hearing. I then rule for the meeting to adjourn, and we will then reconvene next Tuesday. Thank you”. *. The above quotation is found on page * from the bottom. It should be noted that in terms of the Code – there is no such a role of a facilitator, and the proceedings are managed by the Chairperson not HR Business Partner. It is clear that the chairperson upon his appointment by Hasheni he was convinced by Hasheni to exclude legal representation, which he did. *. In keeping with what he was informed to do by his handlers (Hasheni and Mpumi) the chair called upon the Applicant (employee) and the Employer to do the submission in writing for legal representation. *. “Date of hearing: * November Time:10h03 Venue:Microsoft Teams Present: Chairperson:Tebogo Gaokgorwe Initiator (Employer):Mpumi Mabuza Employee’s (Accused) Attorney:Maake Attorneys Facilitator:Lwandile Hasheni Chairperson: Good morning, I am Tebogo Gaokgorwe – the Chairperson of the Hearing. Going through the business of today which is really straightforward in terms of what is expected for the day. In our previous session I had asked the Employee to do the submission in terms of the legal representation as well as the Employer and having applied myself to all the issues and what was presented to me, I am not persuaded that legal representation should be allowed. With that being said, I shall provide written submissions by next week Thursday in terms of what the reasons are for not allowing the legal representation. The new date is to be communicated by the Labour Relations office on Friday, which is the day after the written ruling is provided to the parties. The matter will continue on the new date that will be set. The matter for the day is then adjourned….(See page * Applicant’s Bundle “A”)

It seems you are dealing with a complex case involving procedural fairness in a dismissal for misconduct. Here are some key points and steps you might consider:

Key Legal Points:
- **Section *(*)(b) of the Labour Relations Act (LRA)**:
- Requires the dismissal for misconduct to follow a fair procedure.
- An investigation is crucial before any disciplinary action.
- **Audi Alteram Partem Rule**:
- The employee must have the opportunity to state their case.
- This is a fundamental principle of natural justice.
- **Disciplinary Code and Procedure**:
- Must be followed strictly, including impartiality of the chairperson and the right to representation.
- **Hearsay Evidence**:
- The Commissioner must rule on its admissibility during the proceedings, not just in the final award.

Steps for Addressing Procedural Fairness:
*. **Impartial Chairperson**:
- Ensure the chairperson is unbiased and independent.
- If there is evidence of bias, this could be grounds for challenging the fairness of the hearing.
*. **Right to Representation**:
- The employee should be allowed representation, including legal representation if the case is complex.
- If denied, this could be

The case was complex.

I understand. Here are some concise key points to help you address the complex case:

Key Legal Points:
- **Section *(*)(b) of LRA**:
- Requires fair procedure in dismissals for misconduct.
- Investigation is mandatory before disciplinary action.
- **Audi Alteram Partem Rule**:
- Employee must state their case.
- Fundamental principle of natural justice.
- **Impartial Chairperson**:
- Chairperson must be unbiased.
- Evidence of bias can challenge hearing fairness.
- **Right to Representation**:
- Employee should be allowed representation, including legal.
- Denial can challenge procedural fairness.
- **Hearsay Evidence**:
- Commissioner must rule on admissibility during proceedings, not just in the award.

Steps for Addressing Procedural Fairness:
*. **Ensure Impartiality**:
- Verify the chairperson is unbiased and independent.
- Challenge any evidence of bias.
*. **Validate Right to Representation**:
- Ensure the employee's right to representation is respected.
- If denied, argue this undermines procedural fairness.
*. **Address Hearsay Evidence**:
- Point out the Commissioner’s failure to rule on hearsay

How crucial is the investigation before charging the employee? Does this render charges as invalid in the case where the employer did not conduct investigation nor seek the side of the employee before drafting charges?

In South Africa, an investigation is crucial before charging an employee for misconduct. Here's why:

Impact of Not Conducting an Investigation:
- **Procedural Fairness**: Failure to conduct a proper investigation or to allow the employee to state their side typically renders the charges procedurally unfair.
- **Invalid Charges**: Without an investigation, the charges may be considered invalid, potentially leading to the dismissal being overturned.
Would you like more detailed advice on how to address this issue if it applies to your specific case?

please provide detailed advice, yes

Certainly, here are detailed steps and advice on addressing the issue of procedural fairness and the necessity of an investigation before charging an employee:

Key Points:
- **Section *(*)(b) of the Labour Relations Act (LRA)**:
- Requires that dismissal for misconduct must follow a fair procedure.
- An investigation is mandatory to determine if there's adequate proof of the offense.
- **Audi Alteram Partem Rule**:
- The employee must be given the opportunity to state their case.
- Fundamental principle of natural justice.
- **Disciplinary Code and Procedure**:
- Must be strictly followed, including conducting an investigation before disciplinary action.

Steps for Addressing Procedural Fairness:
*. **Identify Lack of Investigation**:
- Gather evidence showing that the employer did not conduct an investigation.
- Collect documentation or witness statements indicating that the employee was not given a chance to state their side before charges were drafted.
*. **Highlight Procedural Requirements**:
- Cite Section *(*)(b) of the LRA, emphasizing the requirement for a fair procedure and mandatory investigation.
- Refer to the employer’s disciplinary code, which likely outlines the necessity of an investigation before any charges.
*. **Present

The employer states that the employee was given OPPORTUNITY to state her case but instead frustrated the chairperson. The employee applied for recussal of the Chairperson because of his biasness, she therefore followed up with a request for the ruling to be in writing. The Chairperson did not consider her request but instead said he will give his ruling at the end together with his findings. The employee refused to testify infront of a compromised chairperson, she was to suffer prejudice. Chairperson then went ahead to make a ruling for dismissal

Given the scenario you've described, here are detailed steps and advice on addressing procedural fairness and the necessity of an investigation before charging an employee:

During cross examination the employer has conceded to these faults.

Given that the employer has conceded to not following proper procedure during cross-examination, here are some detailed steps and advice for addressing this issue effectively:

Key Legal Points:
- **Section *(*)(b) of the Labour Relations Act (LRA)**:
- Requires that dismissal for misconduct must follow a fair procedure.
- An investigation is mandatory to determine if there's adequate proof of the offense.
- **Audi Alteram Partem Rule**:
- The employee must be given the opportunity to state their case.
- Fundamental principle of natural justice.

Steps for Addressing Procedural Fairness:
*. **Document the Concession**:
- Ensure that the employer's concession regarding procedural faults is well-documented in the hearing records or minutes.
*. **Emphasize Procedural Requirements**:
- Cite **Section *(*)(b) of the LRA** to highlight the legal requirement for a fair procedure, including an investigation.
- Refer to the employer’s **disciplinary code**, stressing that it mandates an investigation before charges are laid.
*. **Argue Procedural Unfairness**:
- Clearly argue that the lack of investigation and the failure to allow the employee to state her case render the charges

The employee was only able to defend the charges at Ccma. Would this assist the employer or defending charges only at arbitration was futile exercise

In the context of CCMA arbitration proceedings in South Africa, defending charges only at the arbitration stage can be challenging. Here are some key points to consider:

Key Points:
- **Procedural Fairness**: Procedural fairness requires an investigation and an opportunity for the employee to respond to allegations before dismissal.
- **CCMA's Role**: The CCMA reviews the fairness of the dismissal, including whether proper procedures were followed.
- **Arbitration Focus**: The arbitration will focus on the procedural and substantive fairness of the dismissal, including any faults conceded by the employer.

Impact on the Employer:
- **Employer's Defense**: If the employer failed to follow proper procedures, this could weaken their defense at the CCMA.
- **Procedural Faults**: Conceded procedural faults during cross-examination can significantly impact the outcome, potentially leading to a ruling in favor of the employee.

Steps to Prepare:
*. **Document Procedural Faults**: Ensure all procedural faults conceded by the employer are well-documented.
*. **Emphasize Legal Requirements**: Highlight the requirements of Section *(*)(b) of the LRA and the employer's disciplinary code.
*. **Argue Unfair Dismissal**:

Now, back to the issue of trust relationship and media statements. Where does this put the employee?

In the context of trust relationship and media statements, here's how it impacts the employee:

Key Points:
- **Trust Relationship**:
- **Damage**: Publicly raising issues may damage the trust relationship between the employee and employer.
- **Reputation**: Media statements can affect both the employee’s and employer’s reputation.
- **Media Statements**:
- **Confidentiality**: Disclosing internal matters publicly can be seen as a breach of confidentiality.
- **Misconduct**: Such actions might be considered misconduct, especially if they violate company policies.

Impact on the Employee:
- **Disciplinary Action**: The employee might face disciplinary action for breaching confidentiality or trust.
- **Legal Ramifications**: Depending on the content of the media statements, there could be legal consequences for defamation or breach of contract.
Would you like more detailed advice on handling media statements or the trust relationship issue?

TRUST RELATIONSHIP The issue of the irretrievably broken trust relationship ordinarily occurs during the course of employment relationship. If such springs up at that period an employee would more often than not be dealt with accordingly. For example such an employee stands to be suspended and during a disciplinary hearing the employer, especially a supervisor who has dealings with the employee in the workplace environment would testify as to in respect of what did the employee break the trust relationship. *. In casu, none of the above ever happened. Even during the course of her disciplinary enquiry she was actively performing her normal functions which included taking instructions from her supervisors as usual. In fact, what is somewhat unusual, Mpumi testified about the fact that the Applicant talked about Brand South Africa in the media after she was dismissed. *. Under cross examination it was put to her that the Applicant was not an employee at the time and further that no rules of Brand South Africa were binding on her. This was after the fact – ex post facto- found application. All this remained uncontroverted. *. During the arbitration, as a last witness, Ms Masango-Gumbi who did not testify in the disciplinary hearing, prevailed and adduced evidence of broken trust relationship between the Applicant and the Respondent, Brand South Africa. She could not provide any cogent and compelling convincing evidence as to how and why? Save and suffice for her to say engaging the media and talk about Brand South Africa had an impact, in her view, on trust relationship, so she said. *. It should be remembered that she conceded, under cross examination the fact that no evidence was adduced by her which contributed and culminated to the Applicant’s dismissal during the disciplinary hearing. When she was quizzed as to why she did not testify at the hearing, her unequivocal response was that the documents were clear that there was an instruction that was not adhered to. In sharp contrast I put to her that there was nothing clear. *. What does the Applicant say about the trust relationship The Applicant echoed what I have traversed pertaining to no suspension and the absence of any evidence that was submitted in support of this sudden claim of intolerability after the fact. In accordance with her assertion, was that she was/is flabbergasted to hear such claims which she considers as mere speculation and conjecture from certain individuals with malicious intent and not necessarily from the organization she served for some years with an unblemished record with pride and aplomb service. *. Be that as it may, what she did, which was to respond to invitations from certain media houses who happened to have learnt about her dismissal. As she intimated, she never approached any media houses for her story. They were the ones who told her that her story was a matter of public interest because all the institutions such as ours, being a democratic and constitutional state, including Brand South Africa are not immune from scrutiny. *. There was nothing untoward about what she said in the media, she remembered and explained, hence there was no evidence to the contrary, and /or claims of damages as a consequence of engaging the media. *. It is highly inconceivable that up to this end there would be no law suit, if there was sinister or derogatory statements. Hers was just to simply tell the truth of what happened exercising her right for freedom of speech and public interest. Such defence is available to her needless to elaborate in this regard because there is no bases to defend a mere subjective opinion with no substance. *. SUBMISSIONS *. *. PRAYER Wherefore, we pray for the order to be made that the Applicant was not guilty of charge *, charge *, charge * and charge * as it was alleged and that her dismissal both procedurally and substantively unfair. In addition, thereto we pray for the retrospective reinstatement of the Applicant without any loss of benefits and be treated as though she was never dismissed.

Based on the details you provided, here are some key points and steps to address the issue of trust relationship and the impact of media statements on the employee:

Key Points:
- **Trust Relationship**:
- A broken trust relationship typically occurs during employment and impacts the ability to continue working together.
- Evidence is usually required to prove the breach of trust.
- **Media Statements**:
- **Post-Dismissal**: Statements made after dismissal generally do not fall under the same rules as those made during employment.
- **Public Interest**: Engaging with the media on matters of public interest could be protected under freedom of speech.

Impact on the Employee:
- **Procedural Fairness**:
- If the employee was dismissed without proper evidence of a broken trust relationship, the dismissal might be considered procedurally unfair.
- **Substantive Fairness**:
- If the employer cannot prove the trust relationship was irreparably damaged, the dismissal might be substantively unfair.

What could be substantive unfairness in this case? What could prevent the Commissioner from issuing retrospective reinstatement?

In the context of your case, here are the key points to consider regarding substantive unfairness and potential barriers to the Commissioner issuing retrospective reinstatement:

Substantive Unfairness:
*. **Lack of Investigation**:
- No proper investigation was conducted before charging the employee.
- This undermines the validity of the charges and the fairness of the dismissal.
*. **Procedural Violations**:
- The employee was not given a fair opportunity to state their case before the dismissal.
- The chairperson demonstrated bias, and the right to representation was compromised.
*. **Trust Relationship**:
- The claim of a broken trust relationship was not substantiated with evidence during the disciplinary hearing.
- Testimonies regarding the trust relationship were given after the dismissal, weakening their relevance and credibility.

Barriers to Retrospective Reinstatement:
*. **Irretrievable Breakdown of Trust**:
- If the employer convincingly argues that the trust relationship has broken down irreparably, reinstatement might not be feasible.

*. **Employee’s Conduct Post-Dismissal**:
- The employee’s engagement with the media could be cited as damaging to the employer’s reputation and trust, even though it occurred post-dismissal

the employer and employee were given equal OPPORTUNITY by the media

Given the scenario you've described, here are key points regarding substantive unfairness and potential barriers to the Commissioner issuing retrospective reinstatement:

Substantive Unfairness
*. **Lack of Investigation:**
- No proper investigation was conducted before charging the employee.
- This undermines the validity of the charges and the fairness of the dismissal.
*. **Procedural Violations:**
- The employee was not given a fair opportunity to state their case before the dismissal.
- The chairperson demonstrated bias, and the right to representation was compromised.
*. **Trust Relationship:**
- The claim of a broken trust relationship was not substantiated with evidence during the disciplinary hearing.
- Testimonies regarding the trust relationship were given after the dismissal, weakening their relevance and credibility.

Barriers to Retrospective Reinstatement
*. **Irretrievable Breakdown of Trust:**
- If the employer convincingly argues that the trust relationship has broken down irreparably, reinstatement might not be feasible.
*. **Employee’s Conduct Post-Dismissal:**
- The employee’s engagement with the media could be cited as damaging to the employer’s reputation and trust, even though it occurred post-dismissal.
*. **Operational

I cannot see number * on the barriers to reinstatement

Certainly, here is the continuation regarding barriers to retrospective reinstatement:

Barriers to Retrospective Reinstatement
*. **Irretrievable Breakdown of Trust**:
- If the employer convincingly argues that the trust relationship has broken down irreparably, reinstatement might not be feasible.
*. **Employee’s Conduct Post-Dismissal**:
- The employee’s engagement with the media could be cited as damaging to the employer’s reputation and trust, even though it occurred post-dismissal.
*. **Operational Requirements**:
- If the employer can demonstrate that reinstating the employee would disrupt operations or create an untenable work environment, this could prevent reinstatement.
*. **Employer’s Equal Opportunity with Media**:
- While both parties were given equal opportunity by the media, the employer might argue that the nature of the employee’s statements caused more significant harm.

Steps for Addressing the Issue:
*. **Document the Lack of Evidence**:
- Highlight that no evidence was provided during the disciplinary hearing to support the claim of a broken trust relationship.
- Emphasize that the supervisor’s testimony did not substantiate the trust issue.
*. **Emphasize Procedural and Substantive Unfairness**:

I don't see number * on the steps for addressing the issue

Certainly, here is the continuation and completion regarding steps for addressing the issue:

They could not demonstrate the harm

Given that the employer could not demonstrate the harm caused by the employee’s actions, here are some key steps and considerations to address procedural and substantive unfairness effectively:

Key Points to Highlight:
*. **Lack of Investigation**:
- No proper investigation was conducted before charging the employee.
- This undermines the validity of the charges and the fairness of the dismissal.
*. **Procedural Violations**:
- The employee was not given a fair opportunity to state their case before the dismissal.
- The chairperson demonstrated bias, and the right to representation was compromised.
*. **Trust Relationship**:
- The claim of a broken trust relationship was not substantiated with evidence during the disciplinary hearing.
- Testimonies regarding the trust relationship were given post-dismissal, weakening their relevance and credibility.

Can you go back to the media statements and now that you've got insight, was there a basis for the employers claim on repetitional damage? The statement made by the employee were truths and she was not bound by any laws

Given the insights provided, here's an analysis focusing on whether there was a basis for the employer's claim of reputational damage due to the media statements made by the employee:

Key Points:
*. **Truth of Statements**:
- The employee's statements were truthful.
- Truthful statements, especially if they address matters of public interest, generally have a defense under freedom of speech.
*. **Legal Boundaries**:
- The employee was not bound by any confidentiality agreements or laws prohibiting her from making the statements post-dismissal.
*. **Reputational Damage**:
- For the employer to claim reputational damage, they must demonstrate how the statements negatively impacted the organization.
- The employer must provide evidence of specific harm caused by the statements, which they apparently could not demonstrate during the proceedings.

Analysis:
- **Basis for Employer's Claim**:
- **Weak Argument**: Given that the statements were truthful and the employee was not legally bound to silence, the basis for claiming reputational damage is weak.
- **Lack of Demonstrable Harm**: The employer could not demonstrate specific harm caused by the employee’s statements, undermining their claim.

Conclusion:
- **No Strong Basis**: The employer's claim

The employer once produced a media negativity analyses from their agency regarding the damage caused by negative publicity. However when cross examined the initiator said the employee had a right to speak to the media and there was no rule she transgressed. The Head of Corporate Services said the same thing. However she was not part of the hearing and did not lead any evidence. She just said the employee should have thought about protecting the Organisation if she was seeking reinstatement. This is a public sector Organisation

Given the additional details, here's a refined analysis regarding the employer's claim of reputational damage due to the media statements made by the employee:

Key Points:
*. **Truth of Statements**:
- The employee's statements were truthful.
- Truthful statements, especially if addressing matters of public interest, generally have a defense under freedom of speech.
*. **Legal Boundaries**:
- The employee was not bound by confidentiality agreements or laws prohibiting her from making statements post-dismissal.

*. **Media Negativity Analysis**:
- The employer produced a media negativity analysis to show damage caused by negative publicity.
- However, during cross-examination, it was admitted that the employee had a right to speak to the media and did not transgress any rules.
*. **Statements from the Head of Corporate Services**:
- The Head of Corporate Services acknowledged the employee's right to speak to the media but emphasized the need for the employee to consider the organization's protection if seeking reinstatement.
- The Head of Corporate Services did not provide evidence during the hearing to substantiate the claims of reputational damage.

Analysis:
- **Employee's Right to Speak**: With the admission that the employee had the right to speak to the media

I cannot see the last sentence on the Analysis

Given the scenario, here's the continuation and conclusion of the analysis:

Analysis:
- **Employee's Right to Speak**: With the admission that the employee had the right to speak to the media and no specific rules were violated, the employer's basis for claiming reputational damage is significantly weakened.
- **Lack of Substantiated Harm**: The Head of Corporate Services' statement about considering the organization's protection does not constitute evidence of actual harm. Additionally, they did not lead any evidence during the hearing to demonstrate the alleged reputational damage.

Conclusion:
- **Weak Basis for Reputational Damage**: The employer's claim of reputational damage lacks strong support, given the admissions during cross-examination and the absence of concrete evidence showing specific harm caused by the employee's truthful statements to the media.
- **Public Sector Consideration**: In a public sector organization, transparency and public interest might further support the employee's right to speak out, particularly when addressing truthful matters.
Would you like more detailed advice on how to present this analysis effectively in your case?

Yes please provide detailed advice and how the commissioner is likely to view this case?

Given the detailed information provided, here’s comprehensive advice on presenting your case effectively and how the Commissioner is likely to view the situation:

Detailed Advice
***. Highlight Procedural and Substantive Unfairness:**
- **Lack of Investigation:**
- Emphasize that the employer did not conduct a proper investigation before charging the employee.
- Cite **Section *(*)(b) of the Labour Relations Act (LRA)** to highlight the mandatory requirement for a fair procedure and investigation.
- **Procedural Violations:**
- Point out that the employee was not given a fair opportunity to state their case before dismissal.
- Stress the chairperson's bias and the compromised right to representation, which undermine procedural fairness.
- **Trust Relationship:**
- Highlight that the claim of a broken trust relationship was not substantiated with evidence during the disciplinary hearing.
- Note that testimonies regarding the trust relationship were given post-dismissal, weakening their relevance and credibility.
***. Address the Media Statements and Reputational Damage:**
- **Truth of Statements:**
- Argue that the employee's statements to the media were truthful and involved matters of public interest, thus protected under freedom of speech.

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