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Sexual harassment in the workplace is an issue the business community has convinced itself occurs very rarely. This should be the case, as we have sound legislation that deals with discrimination in the workplace and the wider community, as well as a constitution that protects the rights of all people. In reality, it is not.
This is another question that arises time and time again. Very often, it emanates from the fact that trade unions, or the accused’s legal adviser, will demand to be given copies of any witness statements or other evidence in the possession of the employer, prior to the disciplinary hearing.
Firstly, it must be remembered that the disciplinary hearing is an internal matter - the disciplinary hearing is not a Court of law - and therefore any such principles that may be applicable to a Court of law does not necessarily apply to the disciplinary hearing. The whole aim of the disciplinary hearing, similar to that of arbitration at CCMA is it is to be handled with as little as possible formalities.
In terms of the disciplinary hearing, the employer can make provision in his disciplinary code and procedure regarding such matters. It must further be remembered that the forum for presenting evidence is at the disciplinary hearing - not prior to it, considering there will not be a chairperson to take it into consideration.
The accused - and the complainant for that matter – must, during the hearing, listen to the evidence of the other side, must listen to any verbal evidence given by witnesses, and make notes regarding any points in that evidence that he requires to contest or dispute in cross-examination.
In ESKOM / NUMSA obo Galada and Others  7 BALR 812 (IMSSA) this very question was addressed. It was ruled that employees are not entitled to be furnished, prior to disciplinary hearings, with documentary evidence which the employer intends to introduce.
It is sufficient that employees be given, prior to the hearing, sufficient detail of the charges to enable the employee to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence of the complainant.
Among other things, the trade union contended that the disciplinary proceedings were unfair because none of the dismissed employees had been furnished in advance with documentary evidence which the employer introduced at the hearing.
The employer's disciplinary code made specific provision in this regard - it provided specifically that accused employees should be given an opportunity to examine evidence only during the disciplinary hearing. There was no provision in the Code for employees to be placed in possession of such evidence prior to the hearing.
The award stated further that accused employees do not have an absolute right to access the employer's evidence in advance of disciplinary hearings. In this particular case, the employees had been given a reasonable opportunity to examine the documentary evidence during the disciplinary proceedings - and therefore there was no procedural unfairness in that respect.
It is not a good thing for an employer to introduce written witness statements into evidence, and it is not a good thing for him to allow his witness to merely read from his written statement as evidence. If he does so, then generally the other side becomes entitled to a copy of that written statement - and they can cross-examine the witness on the content of his written statement rather than on his verbal testimony.
That sort of situation can cause problems if the witness has skipped over, or left something out of his evidence, in his verbal submission when it is written into his written statement. Employers should properly prepare their witnesses before the disciplinary hearing, and lead the witness in his evidence in such a way that the witness testifies to everything that is in his written statement, but does so verbally and the written statement is not actually introduced into evidence. See YICHIHO PLASTICS (PTY) LTD v MULLER (1994) 15 ILJ 593 (LAC) ‘In my view it is a fundamental requirement of a fair procedure that an employee accused of misconduct should be confronted with the evidence against him, and be given the opportunity of controverting that evidence (see in this regard Heatherdale Farms (Pty) Ltd & others v Deputy Minister of Agriculture & another1980 (3) SA 476 (T) at 486)’
It is the strongest opinion of the writer that employees, unions or legal advisers do not have a fundamental right to receive evidence prior to a disciplinary hearing, given that the company’s disciplinary code or procedure specifically addresses same. Should it not be written into the code or policy, the unions and legal advisers could start making claims which could end up prejudicing the company’s case.